Discovery as a Compliance Problem

The article argues that the discovery process in commercial litigation often becomes dysfunctional due to lawyers' incentives for aggressive advocacy, minimal enforcement of discovery rules, and ample opportunities for motivated reasoning. Drawing parallels to corporate compliance systems, the article proposes a compliance-based approach to reform discovery by emphasizing "culture" and "salience." This approach seeks to align litigators' behavior with their roles as officers of the court and promote civility, supported by consistent judicial enforcement and clearer consequences for misconduct.