In a transcript made public today from an SEC case, Judge Rakoff offered the following observations about discovery in civil and criminal cases:
There is a disconnect that the American legal system has never really come to terms with between the fact that where the stakes are primarily money, we allow elaborate discovery, discovery that is so elaborate that it has proven a deterrent to trials because it’s so expensive. But it’s endless. Depositions, interrogatories, document requests, requests for admissions, contention interrogatories, etc., etc., all in the name of trying to find the truth, but overdone to the point where it actually diminishes the possibility of cases going to trial because they are too expensive a process, and so the full truth never comes out.
That’s on the civil side.
On the criminal side, where you have a gentleman or lady’s liberty at stake, we say discovery? What’s that? No depositions, no interrogatories, limited document discovery. And most of what’s required to be disclosed is required only by the Constitution and not by any rules. So we go to two extremes. And we go overboard when it’s only money involved, and we go hugely underboard when it’s liberty involved.