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Abstract

This Article looks back at the origins of initial disclosures and the history of the course of several rule amendments. There was an attempt in the early 1990s to strengthen the federal disclosure rules, but the amendments were implemented inconsistently around the country, and the amendments were subsequently rolled back in 2000. Despite these early challenges, there has been a growing movement in support of initial disclosures as a way to address the growing cost and delay of civil litigation—and, in particular, the cost and delay of discovery. Pilot projects and efforts at the state and federal levels suggest a renewed focus on and support for initial disclosures. In fact, while there remain challenges, the current landscape suggests that a strong disclosure rule may be a necessary reform—particularly for certain case types—in order to ensure that the civil justice system meets the needs of a “just, speedy, and inexpensive” process in the future. While a system of broad and efficient initial disclosures at both the state and federal levels may well be the answer to the challenges that have plagued our system for at least 50 years, we are not quite there yet. The lessons of the 1993 and 2000 amendments illustrate that rule reforms alone cannot change a national legal culture. What is needed are intermediary steps—pilot projects, innovation and adoption at the state level, and a growing body of empirical data—to move our system in the direction of early mandatory disclosures followed by tailored discovery and an adversarial process focused on the merits of the case. This Article explores the past, present, and future of initial disclosures and identifies current opportunities and “intermediary steps,” such as pilot projects and case-type specific initial disclosures, that are paving the way to national reform.

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