Toward A New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process

I. INTRODUCTION

There is a sense of dj vu to the vision of a uniform body of state procedural law applicable in every state court throughout the nation. Swift v. Tyson's1 dream of a nationally uniform body of state substantive common law2 that mirrored an evolving body of uniform federal common law never materialized because state courts refused to defer to federal common law, which was applied only in federal court.3 Swift itself was overturned in 1938 by the Supreme Court's ruling in Erie Railroad v. Tompkins4 that federal courts must defer to the substantive lawmaking authority of state courts. But almost simultaneously with the demise of Swift, the dream of uniform state common law was reincarnated into a vision of uniform state procedural law through the enactment of the Rules Enabling Act (REA) and the adoption of the Federal Rules of Civil Procedure.

The Federal Rules prescribed a uniform code of federal procedure applicable in every federal district court, replacing the hodgepodge of federal practice that had developed under the Conformity Act of 1872.5 Inter-federal district court uniformity was premised on the ideal that "any lawyer could go to any federal court, and be secure that she could understand and master the procedure required, since that procedure would be at once uniform and simple."6 Just as Justice Story had hoped that state courts would defer to an evolving and enlightened body of uniform federal decisional law, so too did the proponents of the REA expect the states to follow the uniform body of procedural law embodied in the Federal Rules.7 They hoped to produce intrastate procedural uniformity8 and reverse the prior federal court practice under the Conformity Act of following local state procedure. As states replicated the federal rules, interstate procedural uniformity throughout state courts would result.9

During the first thirty years after their adoption, the Federal Rules realized the drafters' goal of inter-federal district procedural uniformity.10 And, until the mid-1970s,11 it seemed that the goal of interstate procedural uniformity would be achieved from the top down as a lengthening list of states adopted the federal rules.12 The words of one commentator reflected this optimism: "The drafters of the 1938 Federal Rules of Civil Procedure hoped to establish those rules as a model that the states could adopt, thus fostering national and intrastate procedural uniformity."13

Despite this early trend, however, the vision of interstate procedural uniformity has not materialized for two reasons. First, the uniformity of the federal rules has fragmented with the proliferation of local court rules, resulting in a balkanization of federal procedure.14 There has been widespread scholarly criticism of the "movement to localism"15 in federal procedure and the paucity of sound empirical research to inform the flurry of discovery reforms implemented by recent federal rules amendments, local court rules and Civil Justice Reform Plans implemented by district courts pursuant to the Civil Justice Reform Act of 1990 ("CJRA").16 Second, although the federal rules once exerted a powerful influence on state procedure,17 during the last two decades state deference to the federal rules has waned as state jurisdictions have reasserted their rulemaking independence. In a 2002 update of his definitive 1986 study comparing state and federal procedural rules, Professor Oakley observed: "Not only has the trend toward state conformity to the federal rules stopped accelerating - it has substantially reversed itself."18 The "trend . . . away from uniformity and toward localism"19 in the federal rules is manifested in state civil procedure as well.

The "top-down" federal rules model for achieving inter-state uniformity has failed. During the past fifteen years, most states have adopted a bewildering variety of discovery rule amendments that diverge from the federal model.20 A select group of trend-setting states-Arizona, Texas, Colorado, and Illinois-have outdistanced the federal rules in the pursuit of discovery reform, vying with federal rulemakers for leadership in discovery reform.21 In 1992, Arizona, a so-called "replica" state22 that traditionally conformed to the federal rules model of civil procedure, took off on its own discovery reform trip, adopting a package of discovery reforms more aggressive than anything the federal rules have implemented.23 Colorado, Illinois, and Texas have followed in this divergence.24 As illustrated in Part IV, most states have charted their own paths toward civil discovery reform, paths that diverge from each other and from the federal rules.25 This phenomenon has produced a potpourri of variations in civil discovery rules. In Part II, I contend that variation in the kinds of procedural rules that impact on substantive rights is a detriment to the fair and efficient administration of civil justice,26 and that the policy arguments supporting federal rules uniformity are equally applicable to state court procedure as well.

In deviating from the federal model, state judicial systems have experimented with state civil discovery, picking and choosing from a smorgasbord27 of initiatives aimed at controlling excessive discovery and discovery abuse. In so doing, the states are functioning as "laborator[ies] for experimentation with promising mechanisms"28 for reducing cost and delay in discovery. The proliferation of variations among state discovery rules, though subject to the same criticism directed at procedural disuniformity in the federal courts, has created fertile soil for empirical evaluation of these reforms to assess their efficacy. The resulting empirical data could be shared among all states, informing their continuing efforts at rules reform. Yet, no empirical evaluations have been forthcoming. For example, in Arizona, one of the leaders in aggressive discovery reform, no empirical evaluation of the Zlaket Rules has been undertaken during the nine years these rules have been in effect.29 As proposed in Part III, state jurisdictions should collaborate to fashion model rules of civil procedure by fulfilling their role as laboratories for procedural innovation30 based upon a coordinated and controlled process of empirical research.

A central thesis of this Article is that interstate procedural uniformity remains a desirable, viable and achievable goal despite the failure of the federal-rules-model approach. The momentum for developing uniform state procedural rules must, however, originate from the states themselves. The states have already shown their willingness to experiment, albeit haphazardly and largely uninformed by empirical research, with a wide variety of discovery reforms. I propose that this commitment be channeled, reinforced and sustained by an institutional mechanism that promotes cooperation and collaboration among state judicial systems in experimenting with rules of civil procedure for state courts based upon sound empirical data. If states refuse to follow the federal lead, they need to fashion a vigorous rulemaking process that supports a proactive, national rulemaking role for state courts independent of the federal approach. By pooling their rulemaking resources, state judicial systems can leverage their new assertiveness into an authentic and sustainable leadership role in civil procedure reform that is responsive to the needs of state courts.

Procedural diversity is built into the federal structure of fifty state judicial systems, which are natural laboratories for controlled procedural experimentation. Building upon existing structures, like the National Center for State Courts, state courts can move towards developing a model code of civil procedure based upon sound empirical data developed through centrally-controlled experiments that take advantage of existing procedural diversity. I characterize this approach to state rulemaking as a "new federalism" in the administration of state civil justice.

One can view a reinvigorated role for the states in crafting rules of state civil procedure as part of the resurgence of state government authority in substantive law31 and constitutional rights32 promoted by the Rehnquist Court's "new federalism" jurisprudence. By "protect[ing] the principle that the states enjoy considerable freedom to compete as laboratories of social and economic policies,"33 the "new federalism" has reversed, or at least slowed, the erosion of state authority brought about by the centralizing influence of New Deal legislation.34 In the words of one commentator, the New Deal treated state governments "as little more than convenient districts for the administration of the federal government's policies."35 Similarly, in the procedural arena, recent widespread efforts by state jurisdictions to experiment with their civil discovery rules heralds a reversal of the dominant influence of the federal judiciary that was ushered in by the 1938 Rules Enabling Act.

As a procedural variation on the "new federalism" theme, I propose that state judicial systems continue to develop their independent rulemaking capabilities, but not by competing with each other. Rather than competing as laboratories, I propose that states cooperate as laboratories through a mechanism of controlled experimentation designed to inform a collaborative rulemaking process leading to a model code of state civil procedure. Like the federal rules, these model rules would continue to evolve and improve through continued controlled experimentation among state courts. Acting individually, state judiciaries cannot match the rulemaking resources of the federal courts available through the U.S. Judicial Conference and the Federal Judicial Center. Collectively, however, the states can reduce their dependence on the federal judiciary by developing an enhanced capacity for independent rulemaking through a mechanism of voluntary cooperation that maximizes the role of state judicial systems as laboratories of civil procedure.

This Article identifies the possibilities that arise from two seemingly disparate critiques of contemporary procedural rulemaking: those that bemoan the lack of procedural uniformity as well as those that call for systematic empirical data to support rules reform. Several writers have proposed a system of controlled experimentation within the federal judicial system to resolve the tension that otherwise exists between the need for local experimentation to provide empirical support for rules reform and norm of procedural uniformity.36 I propose that the fifty state rule-making entities, many of which have already exercised their independent authority to adopt an enormous variety of civil discovery reform packages, are uniquely able to take advantage of controlled experimentation.

As discussed in Part II, most critical commentary addressing procedural disuniformity focuses on interfederal district fragmentation of uniform federal procedure.37 The relatively limited scholarship that considers the impact of fragmentation on state civil practice focuses on intrastate disuniformity-the degree to which state civil procedure diverges from the federal model.38 Legal scholarship has not taken the next logical step to assess the costs of interstate disuniformity and the benefits of uniform rules of state civil procedure.39 The lack of scholarly attention to state court rulemaking processes is striking in light of the increasingly prominent role played by state courts in discovery reform40 and the fact that state courts process the vast majority of civil cases.41 Section II refocuses the widespread criticism of the balkanization of the federal rules on the variety of civil discovery reforms implemented by state courts with little or no empirical support. Part II then argues that the "aesthetic"42 of the procedural reform that informed the federal rules in 1938-"careful, informed study that leads to the adoption and amendment of simple rules that are uniform throughout the country"43-is equally applicable to state civil procedure.

Critics have also condemned the lack of "systematic, cumulative data [to improve the civil justice system, which] makes it possible for far-reaching policy proposals to be advanced on the basis of tendentious anecdotes,"44 noting in particular that "little empirical research has been done to objectify and quantify discovery abuse."45 Part III develops the premise that a system of controlled empirical research is not only necessary for sound rule-making, but also promotes the benefits of procedural uniformity. The link between empirical research and uniformity was noted, on the federal level, by Professor Tobias, who argued that "[t]he maximum applicable empirical material must inform . . . attempts to limit proliferation [of federal court local rules]."46 I argue, in Part II, that the seemingly random experimentation underway on the state level needs to be harnessed to improve the quality of rulemaking through a coordinated rulemaking process that empirically evaluates controlled experiments and shares resulting data to improve the quality of rulemaking and, where warranted, provides uniform approaches to shared problems and conditions among the states.

Part IV's survey of recent state civil discovery reforms illustrates the magnitude of the problem of interstate disuniformity by showing that state jurisdictions have experimented with a myriad of discovery reforms47 aimed at what is perceived to be runaway discovery. Part V sets forth my proposal for a mechanism to centralize and coordinate controlled state procedural experimentation and to fashion model rules of state civil procedure.

II. THE CASE FOR PROCEDURAL UNIFORMITY

A. The Problem of Interstate Procedural Disuniformity

1. The Decline of Inter-Federal District Uniformity: Cracks in the Federal Rules Model of National Procedural Uniformity

The drafters of the Federal Rules not only intended to provide a uniform body of federal procedure applicable in every federal district court-inter-federal district court uniformity-48 but also to provide a model of procedural uniformity to be followed by the states (intra-state uniformity).49 Reformers thereby hoped to produce uniform state procedure-inter-state uniformity.50 As the role of the Federal Rules in achieving inter-federal district uniformity of procedure declined during the 1980s and 1990s, so, too, did the role of the federal rules as a model of uniformity for the states to emulate.

The federal model of simplified and uniform rules has fragmented.51 Professor Tobias cogently describes this widely criticized phenomenon:

Observers of the increasingly fractured procedural regime in the federal arena have voiced concerns about the mounting numbers of strictures, the accelerating pace of procedural change and the growing inconsistency of the requirements imposed. Illustrative are the major 1983 and 1993 federal discovery amendments, which new discovery provisions further revised in December 2000. The Civil Justice Reform Act of 1990 concomitantly encouraged all ninety-four federal districts to prescribe local procedures for reducing expense and delay in civil litigation, and these measures conflicted with the Federal Rules. The fragmentation described above is most clearly manifested in the area of discovery, which is a critical feature of many modern civil lawsuits.52

Professor Resnik explains the proliferation of local rule-making as a result of the "exercise of individualized discretion" by federal judges that is "built into the federal rules of 1938" and is a "feature that works against the aspiration of uniformity."53 By the 1980s, a "failing faith"54 in flexible pleading rules and liberal discovery to foster decisions on the merits-a fundamental precept of the initial Federal Rules-accelerated local rules proliferation, further undermining the precept of procedural uniformity. Congressional and judicial impatience with the national rulemaking authority's perceived failure to address problems of cost and delay associated with the so-called "litigation explosion," attributed largely to liberal discovery,55 prompted a variety of local experiments that circumvented and, in some cases, conflicted with the Federal Rules. Judges have taken matters into their own hands, utilizing "local rules in an effort to shape pragmatic solutions."56 Congressional impatience with the pace of change in the Federal Rules to reduce cost and delay contributed to local rules proliferation through the enactment in 1990 of the CJRA, which spawned a variety of cost and delay reduction plans.57

Some observers predict the eventual demise of the federal rules Advisory Committee's traditional role as the guardian of uniformity. According to one writer, the federal rules Advisory Committee itself "dealt a serious symbolic, and perhaps fatal, blow to the cause of a national, uniform procedural code" when it included a provision allowing local districts to alter, or to opt out completely from, the 1993 required disclosure amendment to Rule 26.58 Another commentator attributes "the demise of the influence of the Advisory Committee in judicial rulemaking"59 to the politicization of procedure that is shifting the locus of federal rulemaking authority to Congress, which is more directly responsive to the political influence of lobbyists.60 Local rules have been used by Congress and the Judicial Conference as a convenient tool with which to evade politically volatile issues.61

Inter-federal district court disuniformity complicates federal litigation, increasing cost and delay in the administration of civil justice.62 Many legal scholars have criticized inter-federal district court disuniformity in the realm of discovery, which "is a practice that affects substantive rights and litigation outcomes."63 In this vein, Professor Subrin asks whether "similar cases [can] be decided in similar ways and with similar results when the discovery rules and other rules have become so divergent."64 Critics have described contemporary federal procedure as "impossibly arcane,"65 cluttered66 by local rules that are "overly complex, very different, and even inconsistent, or are quite difficult to find, comprehend, and satisfy."67 They also assert that such rules give a tactical advantage to the local "cognoscenti" over the outside practitioner and to the "expert litigator over the lawyer making episodic appearances in court."68 Other scholars have observed that localism increases the cost of legal services by requiring out-of-district litigants to retain local counsel, restricting competition for legal services.69 Local procedure has also been criticized for "complicat[ing] federal practice, particularly for entities that litigate in multiple districts, such as the Department of Justice, public interest organizations like the Sierra Club, and large corporations."70

As noted in Parts II.A.3 and illustrated in Part IV, state procedure-particularly discovery practice-exhibits the same phenomenon of fragmentation that afflicts federal procedure.

The problem of fragmentation of federal procedure is compounded by non-existent or inadequate empirical research to evaluate local procedural experimentation. Historically, local rules experimentation has frequently informed national rulemaking policy.71 Viewing federal district courts as procedural laboratories, some observers have defended procedural diversity as a "perceived good . . . in allowing experiments on a small scale."72 However, without sound empirical evaluation, the potential advantages of local experimentation remain unrealized. Professor Levin, one of many scholars advocating controlled experimentation, confirms the paucity of sound empirical data: "With a few notable exceptions, results are reported on the basis of impressions: 'We think this is working . . . the bar seems satisfied, or at least the bar can live with it.'"73

Although the CJRA required district courts to collect data to evaluate their respective case management plans, the data were not empirically sound. Professor Carrington has criticized this politically tainted effort at empirical research:

Alas, there is very little science to be employed in these experiments. The experiments are uncontrolled; there is no scientific method employed in planning them; there are ninety-four experiments proceeding at once; and the experiments were to be completed within three years, long before secondary or tertiary effects can be experienced and measured. In this respect, the Act is further confirmation of the disjunction between the politics of court reform and the realities of what happens in court.74

2. The Decline of Intra-State Uniformity: Fading Influence of the Federal Rules Model on State Procedure

The disintegration of the uniform federal rules ideal has been accompanied by a decline in the federal judiciary's influence over state procedure. Professor Oakley, in an update of his 1986 nationwide survey of state procedure conformity with the Federal Rules, concludes:

My fresh look at the federal rules in state courts reveals that, from a state perspective, the FRCP have lost credibility as avatars of procedural reform. Federal procedure is less influential in state courts today than at anytime in the past quarter-century.75

As a concomitant of waning federal leadership in procedural rulemaking, states are assuming greater responsibility for their own court rules. Consider the following observation by Professor Seymour Moskowitz in his survey of recent changes in state procedure rules:

While many states continue to follow the model of the Federal Rules, others are experimenting with innovations that follow quite different paths. These developments may be the harbinger of a future procedural regime, changing the traditional roles of both attorneys and judges in civil litigation.76

In 1992, Arizona, a former died-in-the-wool replica state77 that reflexively followed the federal rules,78 broke new ground in discovery reform. As more fully detailed in Part IV, Arizona's Zlaket Rules79 created a comprehensive mechanism of required disclosure80 that substantially replaced formal discovery. Arizona's disclosure rules are far more ambitious than the 1993 federal rules disclosure amendment81 and represented a radical departure from the 1938 federal model of attorney-managed liberal discovery. The Zlaket Rules attempt nothing less than the elimination of "the adversarial component from the pretrial exchange of information,"82 relegating civil discovery "to a process for filling gaps in the disclosure statements."83

Arizona's role reversal from procedural follower to leader dramatically symbolizes the emerging confidence of state jurisdictions to engage in procedural experimentation. Arizona was the first state to emulate the federal model84 because its bench and bar believed that "the Federal Rules were the product of thousands of lawyers, and Arizona was unlikely to improve upon them."85 Fifty years later, the Zlaket Rules reflect a newly emergent confidence of Arizona's bench and bar that the state's "discovery scheme is superior to the existing federal scheme in that it better serves the needs of the Arizona judiciary, lawyers, parties and citizens."86 The Arizona judiciary's dissatisfaction with recent amendments to the Federal Rules87 and its willingness to depart from the federal discovery rules reflect a state rulemaking process that has matured since the Federal Rules were adopted. Arizona, by "tailor[ing] the reform of discovery and the pretrial process more precisely to the perceived problems with discovery and the litigation system in the Arizona state courts,"88 set a tone for state court rulemaking that manifests a heightened awareness of the differences between state and federal courts.

Texas, Illinois, and Colorado89 followed Arizona's lead in Grafting their own custom-tailored models of civil discovery and case management reform that depart significantly from the federal model,90 as more fully set forth in Part IV.

One can only speculate about the causes of the declining influence of the federal rules model. First, the diminished authority of the Civil Rules Advisory Committee to maintain inter-federal district uniformity may also account in part for the decreasing gravitational pull of the Federal Rules on the states.91 A second contributing factor may be the dubious merit of some of the recent federal discovery amendments.92 For instance, the 2000 amendment to Federal Rule 26(b) that presumptively narrowed the scope of discovery has been universally criticized by legal scholars.93 As a result, Professor Oakley suggests that "[i]t is the Federal Rules that appear to have moved away from the states, rather than vice versa."94 Third, although local procedural experimentation on both the state and federal levels is nothing new and, as noted by Professor Resnik, has often informed federal rulemaking, the states may have caught a more intense form of discovery reform fever than that which stimulated federal district courts to experiment with cost and delay reduction measures.95 State courts labor under a vastly heavier caseload than federal courts and have fewer resources.96 While the civil caseload of state courts of general jurisdiction increased by 32 percent between 1984 and 1999, new cases filed in federal courts decreased.97 A fourth contributing factor to declining federal influence on state rules may be the emerging perception among state rulemakers that federal rules solutions to cost and delay may not be sufficiently tailored to the different circumstances of state courts. For example, one writer suggests that resource-poor state judiciaries may be less receptive to hands-on, labor intensive judicial management, and more inclined to use resource-conserving techniques like presumptive limits,98 standing case management orders (e.g., Colorado) and case tracking (e.g., Colorado's simplified procedures for cases under $100,000(99)). As Professor Subrin suggests: "it may not make sense for state courts to use federal procedure as a model."100 Finally, the political influence of the elite defense bar on federal rulemakers is counterbalanced in many states by the influence of the plaintiffs bar.101

3. The Problem of Uncoordinated Procedural Experimentation by States In an Era of Increasingly National State Court Litigation: A Crazy Quilt of Procedural Variation

During the last fifteen years, most states, like the federal district courts, have engaged in haphazard, uncoordinated procedural experimentation guided by little or no empirical data. Like the "Babel"102 of local federal court procedure, state pretrial rules reflect a crazy quilt of confusing procedural variation that complicates state practice for out-of-state practitioners, especially counsel who defend corporations in state court litigation around the country.103 Yet scholarly commentary on inter-district court disuniformity largely ignores similar problems caused by inter-state disuniformity. This blind spot is curious in light of the applicability of the critiques of localism in federal procedure104 to inter-state procedural variation.105

Litigation in state court is increasingly national in scope. The National Center for State Courts reported in Spring 2003 that "98 percent of mass tort cases are ultimately resolved in state courts."106 One commentator has noted the "specter of ever-expanding large-scale litigation engulfing state and federal judicial systems. . . ."107 Large-scale litigation, defined as "related cases involving numerous parties and spanning multiple forums," includes simple multiparty accidents as well as complex toxic tort and product defect actions.108 The American Law Institute has recognized that "huge multi-party, multiforum disputes have become a recurring feature of modern litigation."109 Increasingly, class actions-including those representing multistate classes-have been brought in state courts since the Supreme Court in Synder,110 Zahn111 and Eisen112 "knocked non-federal question class actions out of the federal arena."113 Contributing to this phenomenon has been the perception that federal courts "have become less receptive to the class action device."114

However, during the editing of this Article, Congress enacted the Class Action Fairness Act of 2005(115) ("CAFA"), on February 18, 2005, which expanded the diversity jurisdiction of federal courts over non-federal question class actions in which the aggregated damages exceed $5 million, thereby partially overruling Zahn, and in which a member of the plaintiff class is a citizen of a state different from any defendant, thereby providing for minimal diversity.116 It is too soon to assess the impact of CAFA on the volume of state-law based class actions that will be heard in state courts. As expressed by the Co-Chair of the Class Actions and Derivative Suits Committee of the ABA Section of Litigation:

Whether broadened federal jurisdiction over state-law based class actions will have its intended effect of limiting the types and numbers of cases that are able to proceed as class actions, of course, remains to be seen. In the meantime, however, we can expect to see defendants vigorously exercise the removal provisions while plaintiffs seek to work around them, testing the scope of the two-thirds/one-thirds provisions and experimenting with new ways to bring "mass actions" that avoid the effect of the law.118

Also during the editing of this Article, in June 2005, the United States Supreme Court, in Exxon Mobil Corporation v. Allapattah Services119, expanded the reach of supplemental jurisdiction in diversity cases by holding that 28 U.S.C. 1367 statutorily overruled Zahn.120 Opting for a literal interpretation of section 1367, the Court ruled that Congress authorized supplemental jurisdiction over jurisdictionally insufficient claims by plaintiffs permissively joined under Rule 20 and by certified class action members pursuant to Rule 23 so long as the "well-pleaded complaint contains at least one claim that satisfies the amount-in-controversy requirement."121

The mushrooming asbestos litigation122 illustrates the growing threat to the fair administration of civil justice posed by procedural diversity among state courts. Over the years, most asbestos litigation has migrated from federal to state courts.123 A study by the Rand Institute for Civil Justice shows that, during the past two decades, asbestos cases have not only migrated from federal to state courts, but have also migrated inter-state to a new group of states procedurally friendly to large verdicts.124 As a result, procedural variation among the states combined with substantive law variation to promote forum shopping by plaintiffs with the attendant risk "that similarly situated litigants may be treated differently and, as a result, unfairly."125 The Rand study confirms the link between differing state procedures and forum shopping across state lines:

As a formal matter, the system frowns on such forum jockeying. The federal judiciary seeks to constrain forum shopping by applying the same procedural rules in all federal courts. Most states model their procedural rules upon the federal rules, but there are important differences between federal and state rules and among state rules. Because state substantive law and procedural rules differ - and because, in reality, informal practices differ across state and federal courts - our federal system provides strong incentives for plaintiffs to structure their lawsuits in ways that allow them to file in favorable forums. When defendants are able to do so, they in turn attempt to remove cases to forums that are favorable to them.126

Asbestos filings have migrated to states with joinder rules that permit large numbers of claims to be joined in one action.127 (CAFA also takes aim at such multistate "mass actions" that it includes within the definition of "class actions."128) Large-scale consolidation of asbestos claims "tilts the playing field against defendants" who frequently settle rather than risk a huge damage award on a single role of the dice as well as the "potential for juries to peg the amount of a compensation award to the most injured plaintiff. . . however unrepresentative that plaintiff may be . . . ."129 For example, Mississippi's liberal joinder rule "allows plaintiffs from out of state to join a lawsuit filed by in-state plaintiffs against out-of-state defendants." According to the Rand report:

The result is something akin to a multistate class action, without the necessity for plaintiffs to meet the class certification requirement (F.R.C.P. 23[b][3]) that common issues predominate and without the protections against intra-class conflicts of interest required by the U.S. Supreme Court in Amchem (521 U.S. 591 [1997]).130

Trial judges in Maryland, Mississippi and Virginia have "consolidated thousands of cases for trial" as a docket-clearing mechanism that promotes settlement.131

Different discovery rules can also produce different substantive outcomes in asbestos litigation.132 For example, Mississippi's rules do not authorize trial judges to order independent medical examinations of plaintiffs, which handicaps defendants' efforts to refute plaintiffs' allegations of asbestosis symptoms.133

The growing burden of mass tort litigation on state courts led to some tentative attempts at interstate cooperation among state judiciaries that stopped short of uniform procedural rules. In an effort to consolidate the burgeoning number of asbestos filings, states joined together to establish the Mass Tort Litigation Committee of the Conference of Chief Justices ("CCJ").134 In light of the increasingly national scope of state court litigation and the problems created by inter-state procedural disuniformity, states should cooperate in formulating a comprehensive body of uniform civil procedure rules.

B. The Benefits of Inter-State Procedural Uniformity: Toward a New Federalism in the Process of Crafting Rules of State Civil Procedure

Civil litigation in state and federal courts is increasingly national and international in scope, crossing state lines as well as national boundaries.135 For this reason, the aesthetic of the national procedural uniformity136 that produced the Federal Rules in 1938 is even timelier today than it was in the first third of the Twentieth Century137 and is applicable to both state and federal procedure. Procedural uniformity is assuming an international dimension as people, commerce, investment capital, and-through the worldwide web and satellite communications-ideas, move more freely across national boundaries. Drawing inspiration from the same Federal Rules that were intended to serve as a national model of procedural uniformity for the states, the American Law Institute ("ALI") recently drafted a model code of transnational civil procedure designed to apply to commercial disputes by courts of sovereign nations worldwide. To justify what might appear to be a Utopian dream, the Introduction to the Principles and Rules of Transnational Civil Procedure cite the "successful effort in the United States a half-century ago to unite many diverse jurisdictions under one system of procedural rules with the adoption of the Federal Rules of Civil Procedure"138:

The Federal Rules established a single procedure to be employed in federal courts sitting in 48 different semi-sovereign states, each with its own procedural law, its own procedural culture, and its own bar. The Federal Rules thereby accomplished what many thoughtful observers thought impossible - a single system of procedure for four dozen different legal communities. The project to establish Principles and Rules of Transnational Civil Procedure conjectures that a procedure for litigation in transactions across national boundaries is also worth the attempt.139

The list of persons associated with the ALI project reads like a "Who's Who" of procedural scholars and jurists.140 The effort to project the Federal Rules ethic of uniformity into the international legal arena lends credibility to a similar effort within the United States to realize the vision of the drafters of the Federal Rules of inter-state procedural uniformity. The transnational procedure project challenges the conventional wisdom "that national procedural systems are too different from each other and too deeply embedded in local political history and cultural tradition to permit reduction or reconciliation of differences among legal systems."141

The globalization of business and, consequently, the internationalizing of litigation, have motivated the international legal community to reframe the role of sovereign national legal systems into cooperative players willing to move toward a common procedural system. An analogous process occurred in the United States during the twentieth century, prompted by the nationalization of business and, consequently, of litigation. Alongside the "historical conception of our system as a federal union of independent states"142 developed a new conception of states as subdivisions of a "unitary community . . . in which all manner of transactions occur without much regard for state lines."143 The impact of this transformation of the American economy on extending the jurisdictional reach of state courts beyond state lines was noted by the Supreme Court in Hanson v. Denckla:

As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdictions over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, to the flexible standard of International Shoe.144

International Shoe's lowering of the jurisdictional barriers of state borders laid the doctrinal foundation for factoring into the jurisdictional equation "the interstate judicial system's interest in obtaining the most efficient resolution of controversies."145

A new federalism in state court rulemaking emphasizes collaboration among members of a national system or federation of state courts similar in concept to the federal court system. The underlying premise of the federal courts-"that they reflect one court system doing the nation's business"146-should also guide the states to move toward collaborative rulemaking as state courts increasingly litigate much of the nation's business. Divergent state procedural rules are not the inevitable consequence of a federalism that "accords to each state great latitude in devising its own laws . . . ."147 The fact that states can constitutionally adopt widely divergent rules does not mean that, normatively, states should do so. The federal system dictates a vertical division of judicial power between federal and state courts. But in terms of the horizontal division of judicial authority among the states, the Constitution does not mandate the manner in which fifty separate judicial systems shall exercise their independent rulemaking authority. States can pool their judicial resources to develop a uniform model code of civil procedure. Uniform state procedure tailored to the shared needs of state courts would further the "interstate judicial system's interest in obtaining the most efficient resolution of controversies. . . ."148

The traditional concept of federalism "maintains that the inability of the states to secure important interstate interests on their own necessitates a centralized federal government endowed with broad, coercive authority."149 The expectation of those who drafted the 1938 Federal Rules that the states would replicate the Rules, thereby achieving intra-state and inter-state uniformity, is consistent with the view that solutions to national problems must originate in the federal government. As discussed previously, this expectation has not been realized. Rather than competing as procedural laboratories,150 the states should embrace a new federalism of interstate cooperation in state court rulemaking to achieve the goal of procedural uniformity throughout the national system of state courts.151

Limited steps toward procedural uniformity in civil litigation have been taken through the years by the American Law Institute.152 The National Conference of Commissioners on Uniform State Laws ("NCCUSL") has also tried to "simplif[y] the legal life of businesses and individuals by providing rules and procedures that are consistent from state to state."153 As early as 1881, the Alabama State Bar Association recognized "the legal tangles created by wide variations in state laws."154 The following year, the New York State legislature authorized the governor to appoint three commissioners "to explore the best way to effect uniformity of law between increasingly interdependent states."155 ALI projects relating to procedural uniformity include the Restatement of Judgments (1940-1942) and the Restatement, Second, Judgments (1969-1982), the Restatement, Second, Conflict of Laws (1971), the Code of Criminal Procedure (1924-1930), the Model Code of Evidence (1939-1942), a Model Code of Pre-Arraignment Procedure (1963-1975) and, most recently, a study dealing with Complex Litigation: Statutory Recommendations and Analysis (1984-1994). "Responding to the expanding interstate and intercourt nature of the practice of law," the NCCUSL drafted the Uniform Evidence Act156 as well as the Model Class Actions [Act] [Rule] (1976), the Uniform Rules of Criminal Procedure,157 the Uniform Conflict of Laws - Limitations Act (1982), the Uniform Declaratory Judgments Act (1922), Uniform Audio-Visual Deposition [Act] [Rule] (1978), and the Model State Administrative Procedures Act.

The Uniform Interstate and International Procedure Act158 "recognizes the interstate aspects of civil litigation and the need to foster cooperative litigation efforts between the states."159 Approved by the NCCUSL in 1962, the act "establishes a mechanism for the courts of enacting jurisdictions to provide out-of-state tribunals and litigants with assistance in obtaining discovery and service of process."160 Although "relatively few states have enacted the Uniform Interstate and International Procedure Act," the ALI cites the Act to "demonstrate the feasibility of interstate cooperation in civil litigation . . . ."161

Most recently, a mass tort litigation crisis in state courts162 has galvanized state jurists to cooperate in the development of uniform strategies including best practices and tentative steps toward uniform or model rules for complex litigation. In August 1991, the NCCUSL approved and recommended for enactment the Uniform Transfer of Litigation Act163 to provide an inter-state court analog to the federal statute - 28 U.S.C. 1404 - that authorizes the transfer of cases among federal courts for the convenience of parties and witnesses. The Reporter for the ALI's Complex Litigation Project proposed a more ambitious mechanism - an Interstate Complex Litigation Panel - to facilitate the consolidation of large numbers of related cases. More finely tuned to address the problem of mass tort litigation management in state courts, the Reporter's proposal would establish a system of "mandatory state court consolidation" analogous to the federal system under the Judicial Panel on Multidistrict Litigation.164

The National Center for State Courts ("NCSC") launched a series of "Initiatives in the Management of Mass Torts" which began in the early 1990s with the establishment of a standing Mass Tort Litigation Committee of twenty state judges to "craft a national approach to dealing with mass tort litigation" in state courts.165 Following a National Mass Tort Conference in 1995, the NCSC published a set of best practices for state judges in Managing Mass Tort cases: A Resource and Reference Book for State Court Judges, which "served as a primary reference" for the NCSC's online Benchbook on Mass Tort Litigation.166 The NCSC is currently developing "model rules and standards of practice" to "improve procedural uniformity and management in complex litigation."167

Geographic diversity in the United States does not justify rampant state court procedural diversity, especially in an era of increasing nationalization of civil litigation. The states no longer significantly reflect unique ethnic, cultural, or historical characteristics. Professors Rubin and Freely note that America's "ethnic and cultural differences do not correspond to geographic sections of the country, and thus cannot be regarded as political communities . . . ."168 Professor Carrington's critique of the proliferation of local rules-that they reflect "differences in the styles and values of particular groups of judges" rather than "variations in local conditions"169-applies equally to the proliferation of variations in state discovery procedure. There is no cultural or ethnic imperative that explains why some states adopt numerical limits on admissions requests while other states do not, or why states adopt different numerical limits on the same discovery device. Local political dynamics within the bench, bar, and legislature, as well as local custom, may explain procedural variations but do not justify them normatively.170 The hodgepodge of discovery reforms adopted by the states, depicted in Part IV, is a reflection of state court rulemaking uninformed by empirical experience and not justified by diverse conditions among the states.

To the extent that material differences among the states may justify some local procedural variation, the nature and extent of these differences can be examined through empirical study. However, certain geographical differences that may affect court operations, such as varying caseloads in urban versus rural areas, exist within many states and are not coterminous with state boundaries. Empirical study might focus on the degree to which problems generated by crowded court dockets in urban areas across the country are similar enough to warrant uniform rules targeting those problems or whether rule amendments-as opposed to "best practices"-offer the most effective solutions.171 Also, rather than assuming that procedural variation must conform to local legal culture, controlled experimentation may also explore the capacity of local legal cultures to adjust to uniform procedures.

State courts, through vehicles like the NCSC, are acting in concert to address their shared needs as state courts that, in many respects, are different from their federal counterparts. States are recognizing that federal rules, tailored to the characteristics of federal courts, do not necessarily fit the circumstances in which state courts function.172 For instance, many resource-poor state judicial systems have rejected hands-on, labor-intensive, case management techniques embraced by the federal rules "tailored to a federal system which . . . relies on assigned . . . judges, and on the availability of magistrates."173 State and federal courts differ in the volume and nature of their respective caseloads. Compared with the federal judiciary, state courts process the vast majority of civil litigation with fewer resources.174 Some writers have noted that the different types of cases handled by state and federal courts may warrant different procedures175 while others observe a different legal culture between state and federal courts.176

III. THE CASE FOR SYSTEMATIC EMPIRICAL RESEARCH THROUGH CONTROLLED EXPERIMENTATION

Besides procedural disuniformity, another common criticism leveled at federal discovery reform during the last twenty years is the lack of empirical research to verify the existence of problems in discovery practice and to evaluate the efficacy of the spate of reforms, most of which have retreated from liberal discovery.177 Equally deserving of criticism, though largely ignored in the literature, is that the helter-skelter proliferation of widely divergent state discovery rules, demonstrated in Part IV, has also proceeded without benefit of sound empirical study. Two central theses of this Article are that the states are already engaged in procedural experimentation increasingly independent of the disintegrating federal model, and that these experiments need to be coordinated and harnessed178 to provide empirical data that will inform the creation of model uniform rules of state civil procedure.

Many legal scholars have criticized the dearth of empirical data to justify, and to evaluate the efficacy of, federal rule changes,179 particularly in civil discovery.180 The CJRA's uncontrolled experimentation by ninety-four federal district courts has been faulted as bad science.181 Although there have been some notable exceptions on the federal level-for example, the RAND Institute's evaluation of case management plans mandated by the CJRA182 and the Federal Judicial Center's empirical study of federal discovery and disclosure practice under the 1993 Federal Rule amendments,183-"the debate over discovery reform has proceeded largely, but not entirely, with reference to salient personal experiences and not with the benefit of empirical evidence."184 Judges and practitioners tend to be resistant to empirical data, frequently "overvalu[ing] anecdotes and opinions about reform and . . . insufficiently attentive both to social science process and to the needs of court users."185 Judge Posner has chastised "[l]awyers, including judges and law professors [for being] lazy about subjecting their hunches-which in honesty we should admit are little better than prejudices-to systematic empirical testing."186 A few writers blame the legal academy for undervaluing empirical scholarship.187

Too often, the vacuum left by the absence of empirical data is partly filled by political influence of the plaintiff's or defense bar on policymakers, leaving unrepresented the interests of potential litigants who lack direct access to the rulemaking process.188 Procedure has become too politicized in recent years189 for empirical data to be an antidote for special interest group jockeying for tactical advantage in the rulemaking process. By the late 1980s, the Research Director of the Rand Corporation's Institute for Civil Justice, a major resource for empirical research, commented on the "highly politicized world of policy research" that "challenges researchers to keep their political personae separate from their research analytic personae."190 Empirical research can, however, temper the dominant influence of private interests over procedure as demonstrated by the significant influence of the Federal Judicial Center's empirical studies on the federal rulemaking process.191

Empirical study also cannot relieve rulemakers of the difficult task of making hard choices among competing normative goals. However, "any value system one adopts is more likely to be promoted if one knows something about the consequences of the choices to be made."192 For example, in balancing the tension between the competing procedural goals of judicial efficiency (e.g., speed and low cost) and fairness (e.g., accuracy in factfinding in individual cases),193 empirical data can inform rulemakers about whether and to what extent a proposed rule change will reduce cost and delay and at what cost to fairness. Discovery reforms designed to cut back the availability of discovery194 are premised on the empirically unsupported,195 but widely-shared, assumption that discovery is "abusive, time-consuming, unproductive, and too costly."196 But the 1998 FJC empirical study of federal court discovery concluded that "the typical case has relatively little discovery, conducted at costs that are proportionate to the stakes of the litigation, and that discovery generally-but with notable exceptions-yields information that aids in the just disposition of cases."197 Further, with the exception of the FJC study, no effort has been made to evaluate whether these "reforms" in fact, reduce cost and delay in litigation.

Some commentators have proposed harnessing the haphazard experimentation by federal district courts to realize their potential as laboratories198 for yielding sound empirical data that can inform national rulemaking. They propose leveraging the potential of the local rules process through a system of coordinated, controlled field experiments.199 Professor Laurens Walker, the most vocal advocate of a system of "restricted field experiments," criticizes "the lack of a systematic official plan to collect valid information about the likely impact of changes to the [Federal] Rules before the adoption of general amendments to the Rules."200

The same proposals for a system of controlled experimentation in the federal court system have equal application to the national system of state courts. A variety of methods exist for conducting controlled field experiments by participating states,201 but the objective of any research design is to isolate the impact of a particular experimental variable on the behavior of individuals in a relevant jurisdictions,202 for instance, the impact of a rule mandating initial disclosure of basic relevant information on the volume and duration of discovery in civil litigation in state courts. A research design with high internal validity must control for "plausible rival hypotheses," i.e., non-experimental variables "that could reasonably explain the behavioral change which the investigator would like to be able to attribute to the existence of the law."203 Controlled field experiments, guided by a national coordinating body,204 would assign proposed procedural rules to groups of states, controlling for the setting in which these procedures are introduced.205

A "simple randomized experiment"206 exploring the effect of initial disclosure on reducing cost and delay in discovery would involve a comparison of a heterogeneous group of states utilizing an initial disclosure rule with a similar group of states not utilizing that rule.207 The resulting data would be evaluated, using regression analysis, to compare of the level of discovery in each group. A more refined research design would utilize a "before-and-after randomized experiment"208 in which discovery comparisons between the groups would be made before, during and after the experimental period.

In a "multi-group randomized experiment,"209 various sets of procedures could be assigned to the experimental states to test how a particular rule change functions in combination with other procedures. For example, federal initial disclosure210 is intended to function in tandem with a requirement that parties confer to develop a discovery plan.211 Sanctions may be imposed on a party who fails to cooperate in good faith in developing a discovery plan.212 By contrast, Arizona imposes a more aggressive initial disclosure duty that is broader in scope than the federal rule but without a corresponding duty on counsel to meet and confer on a discovery plan.213 In researching the efficacy of initial disclosure procedure, rules that vary according to the scope of information that must be disclosed could be assigned to groups of states. Some of these groups could be assigned a rule imposing a duty to meet and confer with and without a rule authorizing sanctions on counsel who fail to cooperate in good faith in fashioning a discovery plan. As an alternative to sanctions, other states could be assigned a rule that provides parties with incentives to cooperate, such as conditioning a party's right to seek judicial intervention to resolve discovery disputes on good faith cooperation.214

The federal court phenomenon of widespread local experimentation with discovery rules, unguided and uninformed by sound empirical research, is occurring within the national system of state courts. The proliferation of diverse state discovery rules has created fertile soil for empirical evaluation of these reforms to assess their efficacy. Yet no empirical evaluations have been forthcoming. I am not aware of any empirical study of recent state discovery reforms other than those implemented on a pilot basis. In Arizona, one of the leaders in aggressive discovery reform, no empirical assessment of the Zlaket Rules has been undertaken during the nine years these rules have been in effect.215 Colorado has recently implemented on a statewide basis216 its Simplified Procedure Rules based on only sketchy data on the pilot program in two counties.217

The role of the several states as "laboratories" for procedural experimentation218 can be fully realized through a system of centrally coordinated controlled experiments informing the development of model state rules that incorporate innovations empirically proven to be effective. In Part V, I propose that the states establish a national mechanism-analogous to the U.S. Judicial Conference-to coordinate an ongoing process of controlled experimentation in state procedure and formulation of uniform rules of state civil procedure.

IV. DISCOVERY REFORMS IN STATE AND FEDERAL JURISDICTIONS: HAPHAZARD EXPERIMENTATION AND PROCEDURAL CHAOS

Part IV takes a close look at recent discovery reforms to demonstrate graphically the extent to which states are engaging in robust rules experimentation. This detailed survey of the range and complexity of discovery rules across jurisdictions is intended to help the reader appreciate the magnitude of the problem of interstate disuniformity as well as the rich potential for harnessing this procedural diversity to improve state procedure.

A. The Discovery Reform "Bandwagon"

Liberal discovery, initiated by the federal courts in 1938, was a watershed litigation reform aimed at eliminating the element of surprise and hide-the-ball tactics common in adversarial litigation.219 From 1938 through the 1970, the federal rules were amended to broaden and expand the availability of discovery and most states-including California-followed the federal lead.220 Party-controlled discovery reached its zenith under the federal rules in the 1970s.221

Discovery amendments in federal and many state courts since the 1970s have effected a counter-reformation by curtailing civil discovery in an attempt "to try to contain the genie of broad discovery without killing it."222 Complaints about a "litigation explosion"223 became commonplace and discovery abuse was branded as the culprit.224 During this period, defense bar and business groups became more "aggressive and sophisticated" in lobbying to reduce access to the courts.225 One critic of this latter-day discovery reform movement refers to the series of discovery "reform" amendments as the "post-1976 pattern of making discovery the convenient scapegoat for generalized complaints about the dispute resolution system."226 Another critic has referred to the "pervasive myth of discovery abuse."227

The 1980 federal rules amendments introduced the discovery conference as a tool to facilitate discovery management. The 1983 federal rules amendments (1) introduced the concept of "proportionality" to encourage judges to tailor discovery to the circumstances of the individual case and gave them sua sponte authority to do so; (2) required attorneys to certify that they are complying in good faith with the discovery rules;228 and (3) attempted to promote judicial discovery management by, in effect, making the discovery conference mandatory in every case through the requirement that the court hold a pretrial conference.229

In 1992, Arizona's dramatic discovery reforms signaled a role reversal in the relationship between the states and the federal courts in procedural rulemaking by radically departing from, rather than merely tinkering with, the federal model of liberal discovery. Arizona's "Zlaket Rules," in the words of one writer, "turned the adversarial system of discovery on its head."230 The Zlaket Rules implemented the concept of mandatory disclosure in its most drastic form virtually replacing routine formal discovery.231 The federal courts followed Arizona's lead the following year with an attenuated version of mandatory disclosure and presumptive numerical limits on interrogatories and depositions.232

In June, 1994, the Alaska Supreme Court adopted a set of discovery reforms that followed the more modest federal disclosure model, rejecting a more sweeping set of reforms based on the Arizona model.233 In 1995, Colorado followed Arizona's lead by adopting comprehensive presumptive limits on discovery methods and early mandatory disclosure.234 The state discovery reform movement gathered momentum in 1996 when Illinois implemented rule amendments to limit the duration of depositions to three hours235 and to require courts to hold case management conferences in every case.236 In cases under $50,000, Illinois rules also provide for sweeping mandatory disclosure modeled on the Zlaket Rules and presumptively limit depositions to parties and expert witnesses.237

In 1997, the National Conference of State Trial Judges, affiliated with the American Bar Association, published a set of Discovery Guidelines designed to integrate the disparate elements of discovery reform into a coherent pretrial system.

In 1999, Texas instituted a three-track system of differential discovery limits denominated "discovery control plans."238 The following year, the federal rules were amended again to scale back the scope of discovery from "subject matter" relevance to "claim or defense" relevance and by presumptively limiting the duration of each deposition to one seven-hour day.239

As depicted in detail in Part IV, many other states have implemented discovery reforms in a kaleidoscopic variety of combinations, picking and choosing from a wide range of discovery initiatives borrowed from the federal model or from one of the states just mentioned. This survey illustrates the degree to which state procedure has fragmented in an area where procedural differences can have major substantive effects. The various discovery regimes, which complicate the increasing volume of national litigation in state courts, have not been justified by systematic empirical research.

B. Lawyer-Managed Discovery vs. Court-Managed Discovery

The discovery reforms reviewed in Part IV fall into two categories: those that address "lawyer-managed" discovery (Section C) and those that address "court-managed" discovery (Section D).240 Lawyer-managed discovery refers to "ordinary" discovery that is controlled by the parties and is available without court intervention. Court-managed discovery requires court intervention, either permitting discovery beyond presumed limits or imposing limits tailored to the individual case.

Recent discovery amendments to the federal rules of civil procedure were premised on the concept of a three-phase discovery process. Phase I involves automatic disclosure of information without the necessity of discovery requests. Formal discovery initiated by attorneys without court supervision, known as "lawyer-managed" discovery, occurs during Phase II. Rules designed to guide or regulate lawyer-managed discovery include (1) default "rules of the road"-rule-based presumptive limits on scope and volume of discovery that define "core" discovery-and (2) the requirement that counsel meet and confer outside of court to plan discovery. Phase III-court-managed discovery-is reserved for difficult cases in which the parties seek discovery in excess of the rule-based limits but cannot agree upon the extent of such discovery.241

C. Lawyer-Managed Discovery: Litigation "Rules of the Road"

1. Rule-Based Presumptive Limits: Across-the-Board or Differentiated by Case Category

Some jurisdictions have imposed across-the-board presumptive limits on the scope of discovery and presumptive limits on discovery duration. Most jurisdictions have imposed across-the-board limits on the frequency and extent of use of discovery methods (i.e., "volume limits"). A few jurisdictions, like California and Texas, have imposed volume limits that vary according to the type of case, establishing "tracks" or "plans" that categorize cases according to the size of the case, usually defined by the amount in controversy. California's so-called "three-track" system is an example of case-differentiated presumptive limits. Section 1.a first surveys rules that presumptively limit scope and Section 1.b reviews rules that presumptively limit the volume of discovery.

Critics of across-the-board discovery limits have argued that "one-size-fits-all" rules do not target the minority of high-stakes, complex cases where discovery problems most frequently arise.242 According to one writer, such rules "change the rules in those very situations that should be left alone."243

a. Presumptive Limits Narrowing the "Scope" of Discovery:

In 2000, amended Federal Rule 26(b)(1) narrowed the scope of routine discovery "available as of right to attorneys without court authorization" from matters "relevant to the subject matter" to matters "relevant to the claim or defense of any party."244 Discovery of information under the broader "relevant to the subject matter" standard requires a showing of good cause, or party stipulation.245 Therefore, if the responding party objects to a discovery request on grounds that it calls for information not relevant to a claim or defense, the requesting party must move to compel production. The requesting party may then argue that the request does meet the "claim or defense" standard and, if not, that good cause exists for discovery under the "relevant to the subject matter" standard.246

While acknowledging that the line between "claims and defenses" relevance and "subject matter" relevance is imprecise, the advisory committee drew this distinction to send two signals: (1) to the federal trial court-"that it has the authority to confine discovery to the claims and defenses asserted in the pleadings"-and (2) to the parties-"that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings."247

Most states have refused to follow the federal lead in this area of discovery reform.248 Only six states have adopted rules that narrow scope definition: Arkansas ("relevant to the issues in the pending action")249; Mississippi ("relevant to the issues raised by claims or defenses")250; Colorado,251 Connecticut,252 and Oregon253 ("relevant to claim or defense of any party"); and New York ("material and necessary in the prosecution or defense of an action").254 Even Texas, which recently overhauled its discovery rules, rejected scope narrowing.255

b. Presumptive Limits on Frequency and Extent of Use of Discovery Methods in Federal and State Courts: Theme and Variations

Most jurisdictions, including California and the federal courts, impose some form of rule-based limits on discovery volume. Out of a total of fifty-two jurisdictions, including the federal courts and the District of Columbia, the rules of procedure in thirty-four of these jurisdictions impose some form of volume limits in general jurisdiction cases.

Of these thirty-four jurisdictions, thirty impose across-the-board volume limits that apply in general jurisdiction courts to all cases without regard to case type or amount in controversy. Many states have special rules that limit discovery in trial courts of limited jurisdiction. Some states-like Texas, Illinois, and California-have adopted a system of discovery limits that varies by case track. The following analysis of volume limits proceeds in two parts. Subsection i surveys-by individual discovery method-those jurisdictions that limit the volume of discovery. Subsection ii focuses on selected jurisdictions that impose volume limits on a case-differentiated basis.

i. Volume limits by Individual Discovery Method-Variations:

Interrogatories

More jurisdictions impose limits on interrogatories than any other discovery method. Thirty-three out of fifty-two jurisdictions impose some form of numerical limit on interrogatories.256 A majority of these thirty-three jurisdictions-twenty-eight in number-impose across-the-board presumptive limits on interrogatories.257 The remaining five jurisdictions (California, Connecticut, Illinois, Texas, and Kentucky) impose numerical limits on interrogatories that vary according to case tracks.258 Of these five jurisdictions, Connecticut imposes volume limits only on so-called Expedited Process Track Cases involving damages less than $75,000.259 The other four states impose interrogatory limitations in all cases, but impose more restrictive volume limits on small cases, generally defined by amount in controversy. For example, California, in "limited cases" (i.e., cases under $25,000), restricts the total number of interrogatories, admissions, and document requests to a "grab-bag"260 of thirty-five and, in "unlimited cases" (i.e., cases over $25,000), limits the total number of interrogatories to thirty-five and the total number of admission requests to thirty-five. Texas, another "three-track" state, limits interrogatories to twenty-five in cases assigned to Level 1 and Level 2 Discovery Control Plans.261

Colorado recently adopted an optional Simplified Procedure rule for cases not exceeding $100,000 effective July 1, 2004. Designed to provide "just, speedy, and inexpensive determination of civil actions," Rule 16.1 essentially replaces most formal discovery with early and far-reaching disclosure.262 Parties may elect to be excluded from this Simplified Procedure.

Of the thirty-three jurisdictions that limit interrogatories, fifteen confine volume limits solely to interrogatories.263 Of these thirty-three jurisdictions, another fifteen combine limits on interrogatories with numerical limits on oral depositions as well.264 However, three of the fifteen jurisdictions that restrict the availability of depositions-California,265 Connecticut266 and Kentucky267-confine deposition limits only to economic litigation track cases, reducing to twelve the number of jurisdictions that combine numerical limits on depositions with numerical limits on interrogatories in substantial cases. All jurisdictions that restrict deposition availability also numerically limit interrogatories.268

Finally, three jurisdictions-Iowa, Nevada, and South Carolina-confine their volume limits to a combination of limits on interrogatories and admission requests.269 California joins these three states if one considers only "unlimited" (non-economic) cases.

Numerical limits on interrogatories also vary by jurisdiction, ranging from twenty-five in federal court,270 Texas271 and Utah,272 to sixty in Hawaii.273 The most popular numerical limit is thirty adopted in fifteen states.274 Four jurisdictions-Arizona,275 the District of Columbia,276 Idaho,277 and Nevada278-fix their numerical limit at forty and seven jurisdictions-Michigan,279 Minnesota,280 Montana,281 Nebraska,282 New Hampshire,283 New Mexico,284 and North Carolina285-set their limits at fifty interrogatories. By comparison, California's limit of thirty-five interrogatories in unlimited cases286 falls within the mainstream of jurisdictions. However, California's presumptive limit can be exceeded by attaching a Declaration of Necessity287 which requires the opposing side to move for a protective order. In federal court, and most jurisdictions that presumptively limit interrogatories, the requesting party can exceed the limits only by leave of court and only "to the extent consistent with the [proportionality] principles of Rule 26(b)(2)."288

Depositions

The oral deposition ranks second in order of discovery devices subject to presumptive limits with fifteen jurisdictions restricting their availability (twelve if only non-economic cases are considered).289 There are a variety of ways in which these jurisdictions have narrowed the frequency and extent of use of oral depositions, employing various combinations of limits on number of individual depositions, limits on the aggregate number of deposition hours and limits on duration of individual depositions.290 Some jurisdictions-like Colorado, Utah, Wyoming, and Texas-limit only the number of depositions or the number of aggregate deposition hours,291 while others-like Maine, Oklahoma and Illinois-limit only the duration of individual depositions.292 Still other judicial systems limit both the number and duration of oral depositions, like the federal courts, Alaska and Arizona.293

Arizona imposes the most restrictive numerical limits, presumptively barring nonparty depositions (other than experts and document custodians).294 Alaska and Colorado are next in line, presumptively limiting depositions to three in number, followed by the federal courts, the District of Columbia, Utah, and Wyoming which presumptively limit depositions to ten.295 In terms of duration, Illinois imposes the shortest presumptive limit of three hours.296 Alaska restricts depositions of parties and experts to six hours and other depositions to three hours.297 Arizona imposes a four-hour limit, followed by Oklahoma and Texas (six hours), the federal courts, and the District of Columbia (seven hours) and Maine (eight hours).298

Request for Admissions

Requests to admit rank third in order of discovery devices subject to volume limits. Nine states (including California) have imposed presumptive limits on admissions requests.299

Across-the-board numerical limits on admissions requests range from twenty in Colorado and South Carolina to forty in Nevada.300 Within this range fall Arizona (twenty-five), Florida, Iowa, Oklahoma and Oregon (thirty) and California (thirty-five in unlimited civil cases).301 Connecticut bars admissions requests completely, but only in Expedited Process cases under $75,000.302

Of the twelve jurisdictions that place across-the-board presumptive limits on oral depositions and interrogatories, only three-Arizona, Colorado, and Oklahoma-also limit requests to admit.303 These states are the "heavy-hitters" of volume limits. Oregon, on the other end of the spectrum, is the only state that confines its volume limits solely to admissions requests.304

Document Requests

The FJC's empirical study of federal civil discovery found that the most frequent form of discovery activity was document production.305 The FJC study also found that the highest percentage of attorneys reported problems in their cases with document production.306 Though reputed to be "one of the most costly parts of discovery and . . . fraught with difficulties,"307 document requests are presumptively limited across-the-board in only two states-Arizona (ten distinct items or categories)308 and Colorado (twenty inspection demands)309-which have implemented the most far-reaching set of discovery reforms. California presumptively limits document requests only in limited civil cases as part of the "grab-bag rule of 35."310 Connecticut places numerical limits on inspection demands in Expedited Process Track Cases under $75,000.311

ii. Volume Limits on a Case-Differentiated Basis-Variations:

Each of the five jurisdictions that vary volume limits by case category has rules that streamline discovery for low-stakes, economic litigation, cases. Of these five jurisdictions, four-California, Colorado, Connecticut, Illinois, and Texas-define these cases by amount-in-controversy. Of these four jurisdictions, California's amount-in-controversy cut-off is the lowest by a margin of $25,000 to $50,000. Kentucky's Economic Litigation Docket includes specified classes of cases regardless of amount in controversy.312

California

California's three tracks consist of small claims, limited and unlimited cases. In small claims cases (cases under $5,000), discovery is barred; in "limited civil cases" (under $25,000), discovery is limited to one deposition and a combination of thirty-five interrogatories, document requests and admission requests.313 In "unlimited cases," discovery is limited to thirty-five specially prepared interrogatories314 and thirty-five admission requests.315

Connecticut

In Connecticut, discovery in Expedited Process Track Cases (under $75,000) is limited to official form interrogatories and inspection demands and party depositions (excluding non-party depositions). Admission requests are completely excluded.316 Connecticut imposes no discovery limits in non-expedited cases.

Illinois

Illinois utilizes a two-track system of discovery limits which imposes across-the-board presumptive limits, applicable in all cases, on interrogatories (thirty)317 and on deposition duration (three hours per deposition).318 In cases under $50,000, additional limits are imposed on depositions of parties, treating physicians and "opinion" witnesses.319

Kentucky

Kentucky's Economic Litigation Docket presumptively permits only parties to be deposed320 and limits the number of interrogatories to twenty.321 In all other cases, Kentucky imposes a presumptive numerical limit on interrogatories of thirty.322

Texas

Texas employs a three-track system of presumptive "discovery control plans." Every case must be governed by one of three discovery control plans denominated as Level 1, Level 2 or Level 3.323

Cases pleading damages under $50,000 are governed by the Level 1 discovery control plan which imposes the most restrictive presumptive limits: a maximum of six deposition hours per party within which to examine and cross-examine witnesses (which may be extended up to ten hours by stipulation) and a limit of twenty-five interrogatories.324 Similar to California's "limited case," Level 1 is intended to provide plaintiffs filing modest cases with a "safe haven" from excessive discovery by defendants.325 Unlike California, however, Texas does not require plaintiffs with smaller cases to utilize Level 1 if they desire broader discovery.326

Level 2 is the "basic 'default' discovery track intended to govern most cases."327 Depositions in Level 2 are limited to fifty hours per party, and only parties and expert witnesses may be deposed. Interrogatories are restricted to twenty:five. The Level 2 Discovery Plan also imposes a discovery period cut-off.328

Level 3 regulates court-managed discovery . . . "designed for more complex cases that would not easily fit into the framework of Levels 1 or 2."329 Level 3 discovery proceeds under a court-ordered discovery plan tailored to the individual case.330 A Level 3 discovery plan may incorporate a process of phased discovery.331 Texas's three-track system is flexible, allowing parties in a Level 1 case to stipulate to Level 2 discovery and allowing either party in a Level 1 plan to move the court for an individually-tailored discovery control plan under Level 3. The court may also act, sua sponte, to order an individually tailored Level 3 discovery control plan.332

c. Presumptive Limits on Discovery Duration: Discovery Cut-Offs

In addition to presumptive limits on scope and frequency of discovery, several jurisdictions have attempted to reduce cost and delay by shortening the amount of time available for discovery, i.e., presumptive discovery cut-offs.

California imposes a time limit to complete discovery of thirty days before the date initially set for trial.333 The court has the discretion to extend the discovery period or to reopen discovery upon motion accompanied by a "declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion."334 However, because CCP 2924's discovery time limit is expressed as an "entitlement as of right" to complete discovery up to the thirty-days-before-trial cut-off date, the trial judge is effectively denied discretion to impose a more restrictive discovery time limit suited to the needs of the individual case.

Several states set earlier time limits for discovery than California. Illinois prescribes a presumptive discovery completion deadline of sixty days before commencement of trial,335 Colorado's Presumptive Case Management Order establishes a presumptive discovery deadline of fifty days before the beginning of trial,336 and Nevada's Rule 26(1) mandates completion of discovery forty-five days before trial.337

Two states-New Jersey338 and Utah339-set fixed presumptive time limits for discovery completion that run forward from a point earlier in the lawsuit (i.e., filing of the first answer or after the first defendant is served) rather than running backward from the date set for the commencement of trial. Texas and New Jersey mandate different discovery time limits for different discovery tracks.340 Texas' system of discovery tracks combines presumptive time limits with volume limits.

New Jersey has a four-track case management system which imposes the following discovery completion deadlines counting from the date the first answer is filed or from 90 days after the first defendant is served, whichever occurs first: Track I -150 days; Track II-300 days; Tracks III and IV-450 days.341 Parties may consent to extend the time for discovery for an additional 60 days and may move the court for additional time for good cause shown.342

Under Texas's rules, the Level 1 Discovery Control Plan requires completion of discovery thirty days before trial, like California.343 However, Level 2's default discovery control plan imposes a presumptive discovery completion deadline of nine months commencing from the date of the first deposition or due date of the first written discovery request served in the case.344 The Level 3 Discovery Control Plan, designed for complex cases that require court-managed discovery, requires the judge to set discovery time limits for the entire case or for an appropriate phase of it.345

The District of Columbia requires the court, after an initial scheduling conference, to "place the case on one of several alternative time tracks and [to] enter a scheduling conference order which will set dates for future events in the case" including discovery deadlines.346

Maine's Rule 16 requires the automatic entry of a standard form scheduling order that includes a discovery completion deadline.347 In complex cases, the rule permits customized scheduling and pretrial orders on motion by a party or the court.

The federal rules advisory committee declined to recommend an early discovery cut-off amendment.348

2. Mandatory Disclosure: Theme and Variations

Mandatory disclosure, as distinguished from formal discovery, imposes a duty to exchange specific categories of information without waiting for discovery requests.349 Early disclosure, as originally conceived by Judge William Schwarzer and Magistrate Wayne Brazil, was intended as an antidote to excessive adversarial sparring by lawyers over formal discovery requests.350

Only nine jurisdictions have embraced comprehensive disclosure procedures-the federal judiciary, Alaska, Arizona, Colorado, Illinois, Kentucky, Nevada, Texas, and Utah.351 California could arguably be considered the tenth jurisdiction because its case questionnaire procedure, applicable only in limited cases,352 is essentially a form of optional disclosure. California's procedure is similar to Texas's Request for Disclosure,353 which is also limited to small-stakes cases. With the exception of Arizona, most disclosure requirements fall far short of Judge Schwarzer's ambitious goal.

In 1992, Arizona seized the initiative from federal rule-makers by implementing the first-and most ambitious354-version of mandatory disclosure355 accompanied by severe limitations on formal discovery.356 In 1993,357 Federal Rule 26(a) implemented a diluted version of mandatory disclosure.358 In response to intense and widespread opposition,359 the Federal Rule was amended in 2000 to limit disclosure to information supporting the claims and defenses of the disclosing party.

Mandatory disclosure typically encompasses three categories of information: (1) basic relevant information other than trial witnesses and documentary evidence, typically denominated "initial disclosures;" (2) information relating to expert trial testimony; and (3) other trial evidence, including lay witness testimony and documentary evidence, called "pretrial disclosures". Under the federal rules, disclosure of each of these categories of basic information proceeds in three successive stages: (1) initial disclosures to be completed during the first few months after defendant is served and has appeared,360 (2) disclosure of expert testimony at least ninety days before trial,361 and (3) disclosure of other trial evidence at least thirty days before trial.362 Alaska, Colorado, and Utah emulate the federal three-phase mandatory disclosure process.363

Departing from the federal approach, Arizona collapses disclosures into a single initial disclosure requirement which mandates that all disclosures be made within forty days of the filing of the answer, subject to a continuing duty to disclose "whenever new information is discovered or revealed."364 Similarly, Illinois requires the disclosure of all information falling within the scope of the duty to disclose, including information relating to expert testimony, within 120 days after the answer is filed.365 Texas's Request for Disclosure, which can be served up to thirty days before the end of the discovery period, likewise encompasses expert witness information along with witness statements and a statement of the legal theories and factual bases of the responding party's claims and defenses.366

Subsections a. and b. review the variety of approaches to initial disclosures and disclosure of expert testimony.

a. Four Models of Initial Disclosures

Federal and state jurisdictions have experimented with four distinct models of initial disclosure.

i. Federal Rule 26(a)(1): Mandatory; narrow scope; case exemptions

Rule 26(a)(1) imposes a narrowly focused duty to disclose witnesses and documents "that the disclosing party intends to support its claims or defenses,"367 as well damage computations368 and insurance agreements.369 Because mandatory disclosure may not be suitable for all cases370-for example, "big" cases371-the rule exempts certain categories of cases deemed unsuited to initial disclosure,372 permits the parties to waive the requirement by stipulation,373 and authorizes the court to modify or eliminate disclosure obligations in a particular case.374 To facilitate discovery planning and management by counsel, initial disclosures must be made at, or within fourteen days of, the Rule 26(f) conference at which the parties must discuss settlement and attempt to agree on a discovery plan.375 Rule 26(a)(1) requires parties to make initial disclosures based on "information then reasonably available to it"376 and expressly declines to excuse a party from its disclosure duty based on the failure of another party to make its disclosures.377 The rule also defers formal discovery until the parties have conferred as required by Rule 26(f)378 which can effectively bar parties from engaging in formal discovery for as long as three months from defendant's appearance or four months after service of the complaint.379

Both Colorado380 and Utah381 model their mandatory disclosure rules after the federal rules. Nevada's mandatory disclosure requirement is somewhat broader in scope than the federal model, encompassing the identity of all persons with information relevant to the allegations of any pleading, whether or not the information supports the disclosing party's claims or defenses.382

ii. Arizona: Mandatory; broad scope; no case exemptions

Arizona's disclosure rule is far more ambitious in scope and applicability than the federal version. Arizona imposes a broad duty to disclose core information in writing-through a disclosure statement-and promptly-within forty days after the filing of a responsive pleading. Parties must disclose the factual basis and legal theory underlying each claim or defense, the identity of all persons with relevant information (whether helpful or harmful to the disclosing party), the "nature of the knowledge or information each such individual is believed to possess," and a list of documents that may be relevant to the subject matter of the action.383 Disclosure in Arizona does not proceed in stages; therefore, the disclosure statement must also include information relating to both lay and expert trial witnesses.384 Arizona also imposes a continuing duty to make amended or additional disclosures "whenever new or different information is discovered or revealed."385 To put teeth into the disclosure requirements,386 the disclosure rules provide for the mandatory exclusion as trial evidence of information that was not timely disclosed.387 Like the federal rules, Arizona's mandatory evidence exclusion sanction provides an exception for harmless failure to disclose.388

Unlike the federal rules, Arizona's disclosure rules apply across-the-board to all cases without exemptions. Arizona also imposes an affirmative duty of reasonable inquiry and investigation389 that is, on its face, more onerous than the duty imposed under the federal rules to make initial disclosures "based on the information then reasonably available to [the disclosing party]."390 However, federal Rule 26(g)(1), in effect, imposes an affirmative duty of reasonable inquiry by requiring each disclosure to be signed by an attorney of record which constitutes a certification that "to the best of the signer's knowledge . . . , formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made."391

A comparison of presumptive limits imposed by Arizona and the Federal Rules indicates the extent to which Arizona's disclosure rules have displaced formal discovery. In Arizona, oral depositions are presumptively limited to party and expert witnesses, thus excluding non-party lay witnesses unless all parties otherwise stipulate, upon court order for good cause shown, or following a Comprehensive Pretrial Conference.392 By contrast, the federal rules permit non-party depositions,393 but set a numerical limit of ten oral depositions per side.394 Arizona limits the length of depositions to four hours395 compared with seven hours under the federal rules.396 Arizona presumptively limits document production requests to a maximum of "ten distinct items or categories of items" which can be exceeded by party stipulation or court order for good cause shown; the federal rules impose no limitation on document production. Arizona presumptively limits admission requests to twenty-five;397 the federal rules do not limit the number of admission requests. Interrogatories are the only discovery device in which the federal rules' presumptive limit-twenty-five398-exceeds Arizona's limit of exceeds.399

Alaska's disclosure requirement-which includes the factual bases of claims and defenses and the identity of persons and documents "relevant to disputed facts alleged with particularity,"400 both favorable and unfavorable to the disclosing party's case-is more sweeping in scope than the federal model but less comprehensive than Arizona's.

iii. Illinois: Mandatory; broad scope; limited to cases under $50,000

Illinois adopted mandatory disclosure provisions that are almost identical to Arizona's in scope but, unlike Arizona's model, are limited in application to cases not exceeding $50,000 in damages.401 Like Arizona's disclosure rules, Illinois imposes a continuing duty of disclosure "whenever new or different information or documents become known to the disclosing party" and an affirmative duty of "reasonable inquiry and investigation."402

As a tradeoff to expansive mandatory disclosure, Illinois also imposes presumptive limits on discovery that are more restrictive than those set by the federal rules but which are not quite as restrictive as Arizona's. Whereas Arizona presumptively limits oral depositions to parties and expert trial witnesses in all cases,403 Illinois limits oral depositions in cases under $50,000 to parties, treating physicians and expert trial witnesses and presumptively prohibits socalled "evidence depositions" unless a good cause showing is made that the witness will likely be unavailable for trial or other exceptional circumstances exist.404 Illinois also prescribes presumptive limits on interrogatories (thirty compared with forty in Arizona)405 and deposition duration (three hour limit per depositions compared with four hours in Arizona).406 As in Arizona, these limits apply to all cases, not just to cases under $50,000. Unlike Arizona, Illinois' rules do not limit the availability of admission or document requests.

Kentucky's mandatory disclosure rules are applicable to Economic Litigation Cases defined by type of case rather than amount in controversy.407

iv. Texas: Optional; broad scope; no case exemptions

Texas rejected the federal model of mandatory disclosure,408 opting instead for "standardized requests for basic discoverable information that would be presumptively unobjectionable"409 and available in all cases. Mandatory disclosure was opposed by both the plaintiff and defense bars410 primarily because it would impose discovery costs on cases that typically do not use discovery.411

Rule 194.2, as promulgated in 1998, struck a compromise between plaintiffs' and defendants' attorneys. Responding to the plaintiffs' attorneys' concerns over the breadth of the disclosure obligation, the final version narrowed the scope of the request to require "the legal theories and, in general, the factual bases of the responding party's claims or defenses" adding, in parentheses, "the responding party need not marshal all evidence that may be offered at trial."412 Rule 194.2 also broadened the scope of the request to include, inter alia, the identity of "persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case" as well as request for witness statements, which are not protected by Texas's work product rule.

Texas's disclosure rule lies somewhere between the federal and Arizona models. Although Texas rejected the mandatory feature of disclosure embraced by both the federal and Arizona rules, the Texas disclosure request is broader in scope than the federal mandatory disclosure duty, approaching that of Arizona's disclosure statement. Unlike federal disclosure, Arizona's disclosure statement and Texas's disclosure request both include legal theories and factual bases of the responding party's claims or defenses, as well as identity of persons with knowledge of relevant information, both favorable and unfavorable. In one significant respect, the Texas disclosure request-by omitting identification of relevant documents-is narrower in scope than both federal mandatory disclosure and Arizona's disclosure statement

b. Expert Witness Disclosure

i. Mandatory Expert Witness Disclosure in Federal Court

The federal rules implement one of the most comprehensive expert witness disclosure schemes designed to reduce the number of costly expert witness depositions and to help parties prepare for those expert depositions that are conducted.413 Federal Rule 26(a)(2) requires "a complete statement of all opinions to be expressed and the basis and reasons therefor," the "data or other information considered by the witness in forming the opinions," and "any exhibits to be used as a summary of or support for the opinions."414 Instead of a brief narrative statement of the qualifications of each expert, the Federal Rule requires detailed disclosure of "all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years."415

ii. Expert Witness Disclosure in State Jurisdictions

Only seven states-Alaska,416 Arizona,417 Colorado,418 Connecticut,419 Kansas,420 Maine,421 and Utah422-have adopted mandatory disclosure of expert witnesses. Most of the remaining states provide for optional disclosure through interrogatories and oral depositions.423 Alaska,424 Colorado425 and Utah426 follow the federal model that requires the expert to prepare and sign a detailed report. The content of Alaska's and Colorado's expert report is the same as that required by the federal disclosure rule. Utah's expert report is slightly less detailed and omits the federal disclosure requirements of "the data or other information considered by the witness in forming the opinions" and "any exhibits to be used as a summary of or support for the opinions."427 Arizona's expert disclosure requirement is similar to Utah's but requires less detailed information about the expert's qualifications.428 Disclosure procedure in both Connecticut and Kansas omits all reference to the expert's qualifications. Maine requires "an automatic disclosure of expert witness information required by M.R.Civ. P. 26(b)(4)(A)(i)"429 which copies the former federal discovery rule 26(b)(4)(A)(i)-now superseded by the more comprehensive federal disclosure of expert witness information-authorizing the optional use of specified interrogatories directed to expert testimony.

In contrast with the eight jurisdictions that have implemented mandatory expert witness disclosure, California, through its optional procedure, provides very limited expert trial witness information, placing the burden on oral depositions to flesh out the details.430

The deadline for completing expert witness disclosure varies among the seven mandatory disclosure state jurisdictions. Arizona requires the earliest disclosure of expert information, which is part of the "initial disclosure" to be made within 40 days after the answer is filed,431 followed by Colorado (120 days before the trial date),432 Utah (30 days after expiration of "fact discovery"433 which must be completed within 240 days after the first answer is filed), and Kansas (at least 90 days before trial unless otherwise directed by the court).434 Connecticut rules require disclosure within "a reasonable time prior to trial."435 In Alaska436 and Maine,437 the court sets the deadline. Among the states that authorize formal discovery of expert witness information, Illinois requires the court to set deadlines for disclosure of opinion witnesses and their opinions, through interrogatory answers, sufficiently early to assure completion of oral depositions more than sixty days before trial.438 Under the federal rules, mandatory expert disclosure must be made ninety days before trial unless otherwise directed by the court.439

3. Discovery Planning by Counsel

Nineteen jurisdictions, including federal court, have adopted a variety of rules that either require, or utilize incentives to encourage, counsel to confer on crafting discovery plans tailored to the needs of the individual case.440 Such rules are designed to relieve courts of the burden of convening discovery conferences in every case.441 As discussed below, some of these jurisdictions require judicial follow-up through the entry of scheduling orders,442 while others contemplate judicial intervention only where the parties cannot agree.443

a. Mandatory Discovery Plans Automatically Entered by the Court: Standard Pretrial Scheduling Orders

Some jurisdictions mandate discovery planning by the parties in every case without burdening the courts with routine hands-on discovery management duties.

Colorado's Presumptive Case Management Order prescribes a pre-trial schedule that sets deadlines for disclosure, settlement discussions and discovery and requires the parties to meet and confer to discuss the need for a Modified Case Management Order.444 Maine's Rule 16 also provides for a standard pre-trial scheduling order automatically entered by the court, but subject to modification by court order.445

b. Mandatory Discovery Plans Submitted to the Court for Approval

Mandatory discovery planning in federal court,446 Alaska,447 Nevada,448 and Utah449 requires the parties to confer on discovery matters and to submit a proposed discovery plan to the court, in the form of a "report," for incorporation into a scheduling order. The court may, but is not required to, convene a discovery conference before entering the scheduling order.450

The Federal Rules provide a well-developed mechanism for discovery planning. Federal Rule 26(f) requires the parties to "confer" as soon as practicable to develop a proposed discovery plan451 and specifies in detail the contents of the discovery plan.452 Cases exempt from initial disclosure are likewise exempt from the requirements of Rule 26(f). Although Federal Rule 16(b) requires the court, in each case, to enter a scheduling order, the federal scheme eases the discovery management burden on judges in two ways. First, the court is not required to convene a case management conference. Second, the parties must attempt "in good faith" to agree on a discovery plan that becomes the basis for the court's scheduling order.453 A party or a party's attorney who "fails to participate in good faith in the development and submission of a proposed discovery plan" is subject to sanctions at the court's discretion.454

To reinforce the key role of the Rule 26(f) conference as a "discovery planning event," 455 federal Rule 26(d) defers formal discovery until the parties have conferred.456 The Advisory Committee pronounced the Rule 26(f) conference "one of the most successful changes made in the 1993 amendments."457

c. Optional Discovery Planning Encouraged Through Incentives

As an alternative to mandatory discovery planning, the District of Columbia and seventeen states-Delaware, Hawaii, Iowa, Maryland, Minnesota, Mississippi, Montana, New Mexico, North Carolina, North Dakota, Oklahoma, South Carolina, Tennessee, Vermont, Washington, West Virginia, and Wyoming-have adopted rules that encourage, but do not expressly require, counsel to engage in discovery planning. To motivate counsel to plan discovery, all but two of these jurisdictions-North Carolina and the District of Columbia458- require the court to convene a scheduling or discovery conference if the moving party represents that the parties have been unable, in good faith, to agree on a discovery plan459 and (except in Maryland) submits a proposed discovery plan.460 In addition, all but two of these eighteen jurisdictions (New Mexico and Maryland), as well as Nevada, impose a duty on parties or their attorneys to participate in good faith in framing a discovery plan and authorize the court to sanction counsel who violate that duty.461

d. Court-Mediated Discovery Planning: Illinois

Illinois mandates discovery planning in court but without the benefit of a prior meeting by the parties outside of court. Of all the variations on the theme of discovery planning, Illinois' scheme places the greatest burden on the courts.462

e. Meet and Confer/Discovery Planning under Current California Rules

California Rule of Court 212(f) requires parties to meet and confer out-of-court, but the rule places less emphasis on the meeting as a discovery planning event than federal Rule 26(f) in several ways. First, Rule 212(f) does not require the parties to develop a discovery plan but merely encourages them to "consider" setting a discovery schedule.463 By contrast, federal Rule 26(f) requires the parties to develop a comprehensive proposed discovery plan that addresses timing and form of disclosures and timing and scope of discovery requests (including phased discovery and limiting discovery to particular issues). Second, California rules do not suspend discovery pending the meet and confer by which time some or most discovery may have already occurred.464 Under federal practice, all discovery is deferred until the parties have conferred and developed a discovery plan which governs all discovery in the case. Thus, the federal meet-and-confer rule channels the attention of the parties to discovery planning rather than discovery completion and anticipation and resolution of discovery issues,465 as under Rule 212(f).

D. Court-Managed Discovery

Section D briefly surveys reforms that promote court-managed discovery through direct court intervention to tailor discovery to the circumstances of the individual case.

Federal and state court rules governing court-managed discovery employ various combinations of optional or mandatory scheduling orders, in-court discovery conferences that focus exclusively on discovery management, and pretrial scheduling or case management conferences that touch more casually on discovery as only one of several pretrial events. Additionally, some jurisdictions embrace the proportionality principle, which explicitly confers judicial discretion to weigh the burdens and benefits of discovery on an ad hoc basis.

The Federal Rules give judges considerable authority to control discovery in individual cases, including setting deadlines for completion of discovery.466 Federal judges frequently impose discovery time limits as a discovery management tool.467 State courts, however, may be less receptive to routine judicial involvement in discovery matters that may unacceptably tax scarce judicial resources.468 State judges labor under heavier caseloads than their federal counterparts without the support of magistrates to share the discovery management burden. Also, in master calendar jurisdictions where, as in many California trial courts, judges are not assigned cases for all purposes, the effectiveness of discovery management may be impaired by the judge's lack of familiarity with the case.

Rules governing scheduling orders, discovery conferences, and pre-trial, case management or scheduling conferences vary considerably across the nation. Fifteen states do not have procedures that explicitly address judicial management of discovery.469 Nineteen states have adopted rules that authorize, but do not generally require, courts to enter orders limiting discovery.470 In some of these states, such orders are required only if the court decides to convene a conference dealing with discovery.471 Among the nineteen states where scheduling orders are generally optional, twelve-Arizona,472 Iowa,473 Minnesota,474 Mississippi,475 Montana,476 New Mexico,477 Oklahoma,478 South Carolina,479 Tennessee,480 Vermont,481 Washington,482 and Wyoming483-require the court to convene a discovery conference only when requested by parties who cannot agree upon a discovery plan. Of these 12 states, New Mexico, South Carolina, Tennessee, Vermont, Washington, and Wyoming require the motion to be accompanied by a proposed discovery plan.

Scheduling orders are mandatory, with or without discovery or pre-trial conferences, in eighteen jurisdictions.484 In five of these-Alaska,485 California,486 Illinois,487 Maryland,488 and New Hampshire489-a discovery, case management or scheduling conference is also mandatory. In the District of Columbia, a discovery conference is optional but a scheduling conference is mandatory.490 In twelve of the eighteen jurisdictions that mandate scheduling ordersfederal court,491 Colorado,492 Delaware,493 Hawaii,494 Idaho,495 Iowa,496 Maine,497 Michigan,498 Minnesota,499 Montana,500 Utah,501 West Virginia502-a conference dealing with discovery is discretionary with the court. In seven of these twelve jurisdictions, the discovery conference becomes mandatory if requested by a party.503 As mentioned earlier, Maine504 and Colorado505 utilize presumptive or standard discovery orders subject to modification by the parties or the court in order to conserve judicial resources.

In addition to states that impose presumptive discovery cut-offs, twelve jurisdictions, including federal, require their courts to enter scheduling or pre-trial orders that impose limits on discovery duration on a case-by-case basis.506

Finally, twenty-five jurisdictions-federal,507 Alabama,508 Alaska,509 Arizona,510 Delaware,511 Hawaii,512 Kansas,513 Maryland,514 Minnesota,515 Montana,516 Nevada,517 New Mexico,518 North Carolina,519 North Dakota,520 Rhode Island,521 South Carolina,522 South Dakota,523 Tennessee,524 Texas,525 Utah,526 Vermont,527 Virginia,528 Washington,529 West Virginia,530 and Wyoming531-have proportionality rules that expressly authorize or require courts sua sponte to customize discovery limits. The proportionality rules in California532 and Colorado533 do not appear to authorize courts to act sua sponte.

The foregoing survey of state and federal discovery reform demonstrates that the wide range of diverse combinations of discovery reforms adopted by the states provides a rich medium for empirical research. Part V proposes a means to realize the potential for coordinated and controlled rules experimentation leading to a uniform state discovery code informed by the collective experience of state courts.

V. PROPOSAL

This Article proposes a vision of state judicial systems that collaborate-through a mechanism analogous to the Civil Rules Advisory Committee of the U.S. Judicial Conference-to develop a national code of state civil procedure based on empirical data developed through coordinated and controlled experimentation in state courts. The state civil rules advisory committee could be established within the framework of the National Center for State Courts ("NCSC"), reporting its recommendations to the NCSC's Conference of Chief Justices ("CCJ") in the same way that the federal civil rules advisory comments reports to the U.S. Judicial Conference. This proposal addresses the twin defects of existing rule-making practice previously discussed: (1) the inequities and inefficiencies of procedural disuniformity throughout the national system of state courts and (2) the paucity of empirical data to support rules reform.

Unlike the NCCUSL or ALI, which undertake projects that are relatively limited in scope,534 the state civil rules advisory committee would be dedicated exclusively to drafting and amending a comprehensive code of state civil procedure. Also unlike the NCCUSL or ALI, the state civil rules advisory committee would be charged with continuing responsibility to evaluate the efficacy of existing rules and to coordinate and conduct controlled experiments in participating state courts designed to improve these rules. The work of the advisory committee would be supported by a staff of experts in empirical research, similar to the research support provided by the Federal Judicial Center to the U.S. Judicial Conference.535 The NCSC currently provides research and consulting services to state courts.536 By operating within the framework of the NCSC, the advisory committee could be established without the necessity of an interstate compact.537 Rules approved by the Conference of Chief Justices would be recommended to the states for adoption in a fashion similar to the Uniform Commercial Code.

The NCSC and CCJ, in partnership with the State Justice Institute (SJI), are logical vehicles to advance this initiative. The NCSC's mission-"to improve the administration of justice through leadership and service to state courts"538-is comprehensive enough to embrace the twin features of my proposal: a collaborative rulemaking process to fashion uniform state civil procedure rules and controlled experimentation to empirically inform the rulemaking process. This mission presupposes the existence of a national state court community539 with a shared interest in state civil justice reform and seeks to serve this common interest, in part, through "reengineering procedures to ensure that litigants experience an efficient, fair, and equitable process"540 and through experimentation541 conducted by a staff of researchers collaborating with court leaders.542

The CCJ works in partnership with the NCSC "to provide an opportunity for consultation among the highest judicial officers of the several states, commonwealths, and territories, concerning matters of importance in improving the administration of justice, rules and methods of procedure, and the organization and operation of state courts and judicial systems, and to make recommendations and bring about improvements on such matters."543 Like the NCSC, the CCJ exists "to develop and advance policies in support of common interests and shared values of state judicial systems."544 As a forum for consultation among the states' chief judicial officers, the CCJ is an appropriate vehicle to evaluate uniform rules proposed by an advisory committee of judges, lawyers and academics. Also, the CCJ's members are strategically positioned to promote the implementation in their respective state court systems of uniform rules approved by the CCJ.

Funding could come from a variety of sources. Congress created the SJI in 1984, with the backing of the CCJ, to fund efforts "to improve the quality of justice in State courts."545 SJI funding is typically matched by state, local and private sources.546 SJI's exclusive mission to fund state court improvement work as well as its mandate "to share the success of one State's innovations with every State court system"547 make it a potential channel for federal funding of the uniform rules project.548 However, Congress drastically reduced the SJI's budget which was almost eliminated in 2003.549 Minimal funding of $3 million was salvaged in fiscal year 2003, largely due to the efforts of the NCSC and the CCJ who continue to urge Congress to restore the originally authorized funding amount of $25 million.550 Congressional awareness of the federal interest in supporting a "fair and efficient" state court system needs to be raised.551 Funding for the uniform rules initiative could also come from state contributions and private sources including corporations and nonprofit foundations. Corporations, foundations and law firms currently contribute to the NCSC552 and those entities that litigate on a national scale may have a particular interest in eliminating needless procedural complexity.

The NCSC and CCJ have already taken tentative, but significant, steps in the direction of developing uniform or model rules. The NCSC's Civil Justice Reform Initiative ("CJRI"), launched in 2000, is "dedicated to setting an agenda for further reform of the civil justice system" including civil discovery.553 The CJRI aims at achieving "greater predictability and uniformity of procedure."554 The NCSC's 2002-2004 Strategic Initiative seeks to "improve the efficiency, effectiveness, and outcomes of the civil justice system" by promoting uniform procedures including model rules for electronic discovery.555

Precedent also exists for a standing rules advisory committee reporting to the CCJ. In the early 1990s, the CCJ, with the support of the NCSC and the SJI, established the Standing Committee on Mass Torts "to craft a national approach to dealing with mass tort litigation."556 At its 2003 mid-year meeting, the CCJ called for the establishment of a National Mass Torts Clearinghouse within the NCSC which would "[d]evelop case management strategies and techniques, including model rules and standards of practice, . . . ."557 To launch the National Clearinghouse, funding was provided by SJI and sought from business entities, law firms, private nonprofit foundations and other interested organizations and associations.558

I acknowledge that politics is a formidable obstacle to the universal adoption of a uniform code of state civil procedure. I also acknowledge that empirical data can be interpreted to serve political ends559 and do not insulate procedural rules from the importuning of interest groups. Adoption of a uniform code of civil procedure will face an uphill battle in state legislatures like California's which exercise the dominant rulemaking power and in which procedure is the political coin of the realm. However, empirical research by the Federal Judicial Center has significantly impacted the federal rulemaking process.560 Ideally, the successful implementation of the uniform rules by an expanding core of states-demonstrated by sound empirical evidence-will create a momentum that will influence rule-makers in other jurisdictions.

VI. CONCLUSION

The goal of a national code of state procedure may seem Utopian. I draw inspiration, however, from the many gifted scholars, jurists and practitioners who continue to pursue the American Law Institute's vision of a. code of transnational civil procedure applicable across national boundaries, undeterred by "skeptics who think the idea premature at best that there can be 'universal' procedural rules."561 The drafting and formal approval of these rules by the ALI and UNIDROIT are the first steps toward the realization of this vision.562 So, too, the vision of uniform state rules of civil procedure, applicable across state boundaries, begins with drafting those rules and is a worthy endeavor.