Edited by Albert A. Foer and Jonathan W. Cuneo
Joseph Goldberg and Dan Gustafson1 Introduction This chapter discusses the pretrial discovery process in civil litigation only – either public or private. Also, it focuses only on litigation in the federal court system and not in the state court or administrative agency systems. The omission of discussion of state court civil litigation is explained by two factors. First, most states model their rules governing civil litigation after the federal rules, and, therefore, the description of discovery in federal litigation provides substantial insight into the processes in many of the state civil litigation systems. Second, under the Class Action Fairness Act,2 much of the civil antitrust cases previously litigated in state courts are now being filed in or removed to federal court. Certain attributes of civil antitrust litigation make the pretrial discovery process particularly important. First, much activity by firms in the marketplace raising antitrust concerns is covert. For example, cartel behavior is very often hidden by the cartel participants and so civil discovery is an important tool for uncovering that activity.3 Second, antitrust litigation almost invariably calls for the use of expert consultants and expert testimony. For example, expert economists and statisticians often testify in antitrust litigation to prove both liability and damages. This extensive use of experts in civil antitrust litigation implicates the ‘expert’ provisions of the federal rules governing pretrial discovery. Third, civil antitrust litigation often involves claims for very large amounts of damages. The stakes of civil antitrust litigation are increased by the mandatory trebling of any...
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