63 Minn. L. Rev. 253 (1978-1979)
Federal Discovery: A Survey of Local Rules and Practices in View of Proposed Changes to the Federal Rules

handle is hein.journals/mnlr63 and id is 267 raw text is: Federal Discovery: A Survey of Local Rules
and Practices in View of Proposed Changes to
the Federal Rules
Sherman L. Cohn*
Traditionally, except for the limited role played by pleadings
and bills of particulars, the attorney in a law court did not disclose
evidentiary matters until trial.' A judicial proceeding was a battle
of wits rather than a search for the truth,'2 and thus, each side was
protected to a large extent against disclosure of his case until counsel
chose to disclose it at trial. This philosophy changed some forty years
ago with the introduction of discovery in the Federal Rules of Civil
Procedure. In the words of Mr. Justice Murphy, the discovery rules
meant that civil trials in the federal courts no longer need be carried
on in the dark. The way is now clear, consistent with recognized
privileges, for the parties to obtain the fullest possible knowledge of
the issues and facts before trial.'3 Or, as another observer saw it,
[m]odern instruments of discovery. . . together with pretrial pro-
cedures make a trial less a game of blind man's bluff and more a fair
contest with the basic issues and facts disclosed to the fullest practic-
able extent.'
The 1938 federal discovery rules maintained the basic premise of
the adversary system. It was left to counsel to determine how to
proceed in discovery matters. A matter came before a judge only
when there was an objection or a failure to carry out discovery. Thus,
* Professor of Law, Georgetown University Law Center.
This Article was written under a contract with the Federal Judicial Center, and
draws upon data obtained in a survey of the federal courts conducted by the Center,
noted throughout the Article. A staff paper prepared by Thad M. Guyer of the Federal
Judicial Center was also a fundamental aid in the preparation of this Article. T. GUYER,
SURvEY oF LocAL CiLva DIscovEY PRocEDuREs (FJC Staff Paper 77-1, 1977).
The conclusions reached and opinions expressed in this Article are solely those of
the author, and are not attributable to the Federal Judicial Center.
The author wishes to express his special appreciation for the valuable assistance
of Daniel R. Kane, Esq., and Keith R. Fisher, in the compilation of materials used in
the Article.
1. Although the law courts had no discovery in a sense recognizable today, an
attorney could file a bill of discovery in an equity court for use in a law court, but
the device was cumbersome. See Pressed Steel Car Co. v. Union Pac. R.R., 241 F. 964,
966-67 (S.D.N.Y. 1917). Equity courts did provide much more discovery. See generally
F. JAMES & G. HAZARD, CIVIL PROCEDURE 171-73 (2d ed. 1977).
3. Hickman v. Taylor, 329 U.S. 495, 501 (1947).
4. United States v. Proctor & Gamble Co., 356 U.S. 677, 682-83 (1958) (Douglas,

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