Edith Beerdsen

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In a litigation environment that features managerial judges, few trials, and increasing volumes of fact evidence, discovery is often what shapes and determines a case. The process is largely invisible to the public and the courts, and the rules of civil procedure do little to guide it. Instead of being a rule-governed process, civil discovery is to a large extent shaped by what this Article terms Discovery Culture: the norms and practices that govern everyday discovery practice and evolve over time within legal communities.

This Article introduces the concept of Discovery Culture, explores its nature as an extralegal practice, and examines the implications for a civil justice system that has Discovery Culture at the very core of its operations. It argues that the formal rules have ceded so much ground to cultural norms that the discovery process, as currently practiced in the federal judicial system, is more akin to an environment of “order without law” than to an environment governed by law in a traditional positivist sense. Ensuring adequate procedural protections requires a recognition of the central role of Discovery Culture in the discovery process, and procedural measures to make its norms and practices visible and evaluable.

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