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Hastings Law Journal

Abstract

Tension between open discovery practice under the Federal Rules of Civil Procedure and the adversarial tradition of the American justice system has existed for decades. Efforts to curb perceived discovery abuse or misuse, in addition to calls for litigation system reform, have resulted in amendments to several Federal Rules. The controversial Rule 26(a), which took effect in December 1993, requires litigants to automatically disclose information on witnesses and documents "relevant to disputed facts alleged with particularity" and potentially revolutionizes traditional discovery practice.

In his Article, Professor Sorenson examines the history of discovery and previous attempts to reform discovery practice. He focuses particularly on the recent enactment of Rule 26(a) and the unprecedented, organized resistance to the amended rule. In evaluating the opposition to passage of the rule from the organized bar, scholars, and judges, Professor Sorenson examines the root cause of the perception that disclosure is inconsistent with the adversarial system. He concludes that the disclosure rule, by itself, is unlikely to diminish discovery abuse; alleviation of such abuse is only likely to occur with fundamental changes in the legal system that specifically address attitudes of the profession.

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