Citation
McKenna, J. A., & Wiggins, E. C. (2009). Empirical research on civil discovery. Boston College Law Review, 50(6), 1461–1530. https://bclawreview.bc.edu/articles/1277/files/63bebfa92cc1e.pdf
Research Question
What does empirical evidence reveal about how civil discovery actually functions in federal courts, including its volume, costs, burdens, and the conditions under which discovery problems arise?
Key Takeaways
Discovery is far less common and far less voluminous than many practitioners assume;
High-discovery cases cluster in specific domains, meaning discovery burden is predictable rather than random;
Most discovery friction emerges from complex, multi-party, high-stakes litigation where incentives and information gaps intensify;
Attorney behavior, client pressures, and uneven judicial management all contribute to discovery problems;
Empirical studies show that discovery patterns are systematic, not anecdotal, allowing litigators to anticipate procedural tendencies;
Perceptions of discovery “abuse” often exceed demonstrated empirical reality, underscoring the value of data-driven judicial insight.
Dataset Description
The article synthesizes empirical studies spanning several decades, including:
• Federal Judicial Center studies of more than 3000 federal cases across multiple districts.
• The Columbia Project field survey examining case files, attorney surveys, and interviews.
• The Civil Litigation Research Project covering both state and federal cases.
• State court studies from the National Center for State Courts (over 2000 cases).
Data range from the 1960s through the 1990s and include federal and state civil cases of varying complexity across multiple jurisdictions.
Methodology
Doctrinal synthesis of empirical research; quantitative/statistical analysis of discovery incidence, volume, cost, and attorney behavior; comparative evaluation across multiple empirical studies.
Key Findings
The article shows that civil discovery is highly patterned: most cases involve little to no formal discovery, while a small subset of complex, high-stakes matters accounts for the bulk of discovery activity and nearly all serious discovery problems. Discovery costs, burdens, and disputes correlate strongly with case type, number of parties, stakes, and attorney incentives. Importantly, attorney perceptions of pervasive discovery abuse are not supported by empirical data. For litigators, the findings highlight how predictable variables, case complexity, party structure, attorney expertise, and judicial engagement shape discovery behavior and procedural outcomes, creating identifiable strategic pressure points.
Summary
Empirical Research on Civil Discovery provides a rare panoramic view of how discovery actually works in civil litigation, grounding the broader debate about discovery reform in observable patterns rather than anecdote. Across every major empirical dataset examined, the authors show that discovery occurs far less frequently than commonly believed. In more than half of federal civil cases studied, no formal discovery occurred at all. Even when discovery is used, most cases involve only a handful of requests. This sharply contrasts with the popular narrative of discovery as an omnipresent and burdensome component of litigation.
The research reveals clear structural predictors of discovery intensity. Complex cases, multi-party configurations, high dollar amounts, and specialized litigation domains generate disproportionately more discovery events. Discovery friction also tends to rise under these conditions. These findings illuminate a useful strategic truth for practitioners: discovery behavior is not random or personality-driven alone; it follows consistent patterns tied to case architecture and incentives. Understanding these contours helps litigators anticipate the likely rhythm, cost, and conflict points of discovery from the outset.
The article also challenges the widespread perception that discovery abuse is pervasive. Survey respondents frequently express frustration with opposing counsel or court oversight, but empirical studies show that actual instances of sanctionable or abusive conduct are relatively infrequent. Where problems do arise, they cluster in the same categories of high-complexity, high-stakes matters. These environments amplify tactical incentives, generate more opportunities for error or resistance, and place greater demands on judicial case management. This suggests that the real challenge is not system-wide dysfunction but targeted management of predictable problem zones.
For litigation partners and strategists, the implications are significant. Discovery burdens can be anticipated early through case characteristics; cost-benefit calculations should consider that more discovery does not necessarily lead to better outcomes; and patterns of judicial intervention, attorney specialization, and party pressure shape discovery’s trajectory. These insights help refine motion posture, settlement timing, and resource allocation. Above all, the article affirms that discovery behavior, like broader judicial behavior, is patterned, measurable, and ripe for strategic analysis.
Research Question
What does empirical evidence reveal about how civil discovery actually functions in federal courts, including its volume, costs, burdens, and the conditions under which discovery problems arise?
Key Takeaways
Discovery is far less common and far less voluminous than many practitioners assume.
High-discovery cases cluster in specific domains, meaning discovery burden is predictable rather than random.
Most discovery friction emerges from complex, multi-party, high-stakes litigation where incentives and information gaps intensify.
Attorney behavior, client pressures, and uneven judicial management all contribute to discovery problems.
Empirical studies show that discovery patterns are systematic rather than anecdotal, allowing litigators to anticipate procedural tendencies.
Perceptions of discovery “abuse” often exceed demonstrated empirical reality, underscoring the value of data-driven judicial insight.
Dataset Description
The article synthesizes empirical studies spanning several decades, including:
• Federal Judicial Center studies of more than 3000 federal cases across multiple districts;
• The Columbia Project field survey examining case files, attorney surveys, and interviews;
• The Civil Litigation Research Project covering both state and federal cases;
• State court studies from the National Center for State Courts (over 2000 cases).
Data range from the 1960s through the 1990s and include federal and state civil cases of varying complexity across multiple jurisdictions.
Methodology
Doctrinal synthesis of empirical research; quantitative/statistical analysis of discovery incidence, volume, cost, and attorney behavior; comparative evaluation across multiple empirical studies.
Key Findings
The article shows that civil discovery is highly patterned: most cases involve little to no formal discovery, while a small subset of complex, high-stakes matters accounts for the bulk of discovery activity and nearly all serious discovery problems. Discovery costs, burdens, and disputes correlate strongly with case type, number of parties, stakes, and attorney incentives. Importantly, attorney perceptions of pervasive discovery abuse are not supported by empirical data. For litigators, the findings highlight how predictable variables, case complexity, party structure, attorney expertise, and judicial engagement shape discovery behavior and procedural outcomes, creating identifiable strategic pressure points.
Summary
Empirical Research on Civil Discovery provides a rare panoramic view of how discovery actually works in civil litigation, grounding the broader debate about discovery reform in observable patterns rather than anecdote. Across every major empirical dataset examined, the authors show that discovery occurs far less frequently than commonly believed. In more than half of federal civil cases studied, no formal discovery occurred. Even when discovery is used, most cases involve only a handful of requests. This sharply contrasts with the popular narrative of discovery as an omnipresent and burdensome component of litigation.
The research reveals clear structural predictors of discovery intensity. Complex cases, multi-party configurations, high dollar amounts, and specialized litigation domains generate disproportionately more discovery events. Discovery friction also tends to rise under these conditions. These findings illuminate a useful strategic truth for practitioners: discovery behavior is not random or personality-driven alone; it follows consistent patterns tied to case architecture and incentives. Understanding these contours helps litigators anticipate the likely rhythm, cost, and conflict points of discovery from the outset.
The article also challenges the widespread perception that discovery abuse is pervasive. Survey respondents frequently express frustration with opposing counsel or court oversight, but empirical studies show that actual instances of sanctionable or abusive conduct are relatively infrequent. Where problems do arise, they cluster in the same categories of high-complexity, high-stakes matters. These environments amplify tactical incentives, generate more opportunities for error or resistance, and place greater demands on judicial case management. This suggests that the real challenge is not system-wide dysfunction but targeted management of predictable problem zones.
For litigation partners and strategists, the implications are significant. Discovery burdens can be anticipated early through case characteristics; cost-benefit calculations should consider that more discovery does not necessarily lead to better outcomes; and patterns of judicial intervention, attorney specialization, and party pressure shape discovery’s trajectory. These insights help refine motion posture, settlement timing, and resource allocation. Above all, the article affirms that discovery behavior, like broader legal outcomes, is patterned, measurable, and highly dependent on the institutional and procedural environment rather than random chance
How the Study Advances Empirical Understanding of Legal Outcomes
The study finds that legal outcomes and procedural behaviors exhibit measurable structure rather than randomness, with discovery incidence and volume directly correlating to institutional factors such as case complexity, party count, and the financial stakes involved. Recognizing these historically observable regularities is essential for a high-level analytical understanding of the legal system, as the data demonstrates that intensive discovery and procedural friction are not pervasive anomalies but are systematically concentrated within specific litigation environments. This methodological focus on identifying repeatable patterns within decision contexts is consistent with Pre/Dicta’s emphasis on empirical, case-based analysis of legal outcomes as a necessary component of sophisticated litigation strategy.
