The discovery process is the most distinctive feature of American civil procedure. Discovery has been referred to as procedure’s “backbone” and its “central” axis. Yet 98% of American cases take place in state judiciaries where there is little to no discovery. Most state court cases involve unrepresented parties litigating debt collection, eviction, family law, and employee claims. And the state rules of procedure rarely give these parties the power to make discovery requests. This “missing discovery” means, then, that discovery is not a fundamental part of states’ legal traditions.
This Essay presents a study of America’s missing discovery system in state civil courts. It begins with a brief survey of state discovery rules that show how discovery is often inaccessible and opaque. It then argues that while discovery has been key to the progress of federal law, it has not been an important tool for state law reform. Still, the Essay highlights that discovery is a double-edged sword: It can empower small claimants but may also impose costs and complexity that these litigants cannot handle. Accordingly, the Essay proposes an experiment in access-oriented discovery, focusing on disclosure obligations on sophisticated litigants. The Essay’s main goal, however, is to work towards a theory of discovery in state civil courts.