Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Along with a lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or y those most closely involved in civil procedural reform to gather empirical evidence to determine how important the right to take presuit investigatory discovery is to the institution and maintenance of civil suits. This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state\u27s presuit discovery rule: one out of two lawyer and judge respondents reported at least one experience in which a presuit deposition was taken, Relatedly, it appears that approximately sixty percent of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining forty percent of depositions were secured for the purpose of perpetuating testimony. Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements for bringing suit, as well as the pull of practical considerations, may plausibly explain the use of the state\u27s presuit discovery rule. Read in this manner, the empirical evidence suggests that an important relationship exists between access to information and access to justice

Syngenta, Stephenson and the Federal Judicial Injunctive Power

In particular, my objectives are three-fold. As regards Syngenta, I will examine the case’s background and procedural history to highlight the strategic decisionmaking and forum shopping decisions made by all of the parties and their lawyers in the contest. Also, by revisiting the Supreme Court’s decision in the case, I hope to offer a better perspective on what the justices did decide and, correspondingly, also reflect on what they did not decide. Even as Syngenta nodded in recognition that some power exists to enjoin state proceedings, its ambit was left undefined. Recognizing the scope of the Court’s decision is critical if any insight is to be gained into the import the decision bears on the limits of the federal judicial injunctive power. My second objective concerns Stephenson. Like the earlier study of Syngenta, the examination of Stephenson will also consider the case’s background and procedural history. Because there ultimately was no decision by a majority of the Court in the case, Part II of this paper more carefully parses the intermediate appellate court’s opinion, along with the positions advanced by the parties and their amici before the United States Supreme Court. Examining the arguments in this manner helps to frame the parameters of the debate over federal injunctive power as it arose in the Stephenson context. Finally, Part III considers, in the aftermath of Syngenta and Stephenson, the future battles we should expect over the use of the civil injunctive power by federal judges to restrain state litigants. In considering the legal questions likely on the near horizon, we will also discover the most important and revealing connection between these ostensibly unrelated cases

Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Along with a lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or y those most closely involved in civil procedural reform to gather empirical evidence to determine how important the right to take presuit investigatory discovery is to the institution and maintenance of civil suits. This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state\u27s presuit discovery rule: one out of two lawyer and judge respondents reported at least one experience in which a presuit deposition was taken, Relatedly, it appears that approximately sixty percent of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining forty percent of depositions were secured for the purpose of perpetuating testimony. Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements for bringing suit, as well as the pull of practical considerations, may plausibly explain the use of the state\u27s presuit discovery rule. Read in this manner, the empirical evidence suggests that an important relationship exists between access to information and access to justice