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35 W. St. U. L. Rev. 121 (2007-2008)
Discovery in State Civil Procedure: The National Perspective

handle is hein.journals/wsulr35 and id is 125 raw text is: Discovery in State Civil Procedure: The National Perspective By Seymour Moskowitz* I. LIMITS ON DISCOVERY IN STATE COURTS ............................ 124 II. SPECIFIC STATE EXPERIMENTS WITH DISCOVERY PROCESSES ........... 128 1m1. SIMPLIFIED PROCEDURE RULES ...................................... 133 IV. ACCESS TO UNFILED DISCOVERY IN CASES OF PUBLIC INTEREST ....... 135 V. STATE ANTI-SECRECY MEASURES .................................... 140 VI. STATE COURT RULES .............................................. 143 The organizers of this gathering on state civil procedure, particularly Professor Glenn Koppel and the editors of the law review, are to be congratulated for creating events that spotlight the critical importance of state civil procedure in contemporary American culture. Millions of individual Americans and businesses rely upon the state civil justice system to resolve crucial issues in their lives, e.g., personal injuries, family law matters, commercial disputes. The vast majority of legal matters in the United States involve state, not federal, law and almost all these matters are filed in state courts.' In 2004, nearly thirteen new cases were filed in these courts.2 Our common law litigation tradition has involved primarily private litigants seeking redress for private wrongs. While this tradition lives on in the day to day operation of state courts, courts today are often called upon to decide questions which transcend the rights and obligations of the specific parties. Major public policy issues are routinely decided through civil litigation in the United States, many in state courts. Examples include the liability of tobacco companies to smokers and government to cover costs of smoking-related illnesses,3 damages from Hurricane Katrina,4 the nation-wide scandal of abusive Catholic priests,5 and numerous others.6 The public Professor of Law, Valparaiso University School of Law. B.A., Columbia University; J.D. Harvard Law School. I thank Brenda Likavec, VUSL 2007 for invaluable research assistance and, as always, Melissa Mundt for tireless and patient professional work in getting this manuscript out. 1. The number of state cases dwarfs the federal caseload. More than 5 million civil cases were filed in general jurisdiction state courts in 2004 and another 8 million in limited jurisdiction courts. National Center for State Courts Examining the Work of State Courts 2005, http://www.ncsconline. org/D.Research/csp/2005_files/0-EWWhole%2ODocument-finali.pdf (last accessed June 4, 2007) (hereinafter NCSC 2005). In contrast, the number of civil cases filed in federal district courts in 2004 totaled 281,338. Judicial Business of the United States Courts: 2004 Annual Report of the Director, United States Government Printing Office T. S-7 (2005). 2. NCSC 2005, supra n. 1. 3. See e.g. Carrick Mollenkamp, Adam Levy, Joseph Menn & Jeffrey Rothfedder, The People vs. Big Tobacco: How the States Took on the Cigarette Giants (Bloomberg Press 1998). 4. State v. All Prop. & Cas. Ins. Carriers Authorized & Licensed to do Bus. in the St. of La., 937 So. 2d 313 (La. 2006) (holding that an executive act by the governor extending the time frame in which citizens had to file insurance claims was constitutional). 5. See Doe v. Norwich Roman Catholic Diocese, 909 A.2d 983 (Conn. Super. 2006) (denying defendant's motion for summary judgment on claims alleging negligence, breach of fiduciary duty and reckless or wanton misconduct in a suit alleging sexual abuse of minors by priests); Eden v. Oblates of St. Francis De Sales, 2006 Del. Super. LEXIS 492 (Dec. 4, 2006) (denying summary judgment in a case involving subsequent sexual abuse of a minor following a contract entered into

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