50 U. Pitt. L. Rev. 703 (1988-1989)
The Federal Rules, the Adversary Process, and Discovery Reform

handle is hein.journals/upitt50 and id is 713 raw text is: ARTICLES
THE FEDERAL RULES, THE ADVERSARY PROCESS,
AND DISCOVERY REFORM
William WSchwarzer*
I. INTRODUCTION
The framers of the Federal Rules of Civil Procedure had no
doubts about the adversary process. Their purpose was to fashion a
procedural framework in which that process could function effec-
tively, free of surprise and technical encumbrance.1 In this frame-
work, lawyers would manage their cases, would obtain all necessary
information through pretrial discovery, and, if they failed to settle,
would bring the case to trial promptly. As one enthusiastic commen-
tator described it, The 'sporting theory of justice' has been rejected.
Victory is intended to go to the party entitled to it, on all the facts,
rather than to the side which best uses its wits.'2 The result would be
the just, speedy and inexpensive determination of every action.'3
Fifty years later, that vision has become clouded and the framers'
purpose is largely unfulfilled. The staggering increase in the volume
and complexity of cases has thrust case management on judges and
has involved them deeply in controlling the scope and pace of litiga-
tion. Discovery, originally conceived as the servant of the litigants to
assist them in reaching a just outcome, now tends to dominate the
litigation and inflict disproportionate costs and burdens. Often it is
conducted so aggressively and abusively that it frustrates the objec-
tives of the Federal Rules. It has been said that now lawyers must try
their cases twice, once before trial and once at trial.4
* United States District Judge, Northern District of California. Leora Gershenzon and Kent
Walker of the California Bar assisted in the preparation of this Article. I am also indebted to Magis-
trate Wayne D. Brazil, Professor John H. Langbein, Professor Thomas D. Rowe, and Marvin E.
Frankel of the New York Bar for their helpful comments and suggestions.
1. W. GLAsER, PRETRIAL DIscovERY AND THE ADVERSARY SysrEM 24 (1968); Resnik,
Failing Faithk Adjudicatory Procedure in Decline, 53 U. CHI. L. REv. 494, 504-05 (1986).
2. Wright, Discovery, 35 F.R.D. 39, 40 (1964) (citation omitted).
3. FFD. R. Civ. P. 1. All references to rules are to the Federal Rules of Civil Procedure.
4. Burger, Agenda for 2000 A.D.-A Need for Systematic Anticipation, 70 F.R.D. 83, 95-96
(1976).

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