An empirical study of the economics of pretrial discovery

Abstract

The paper investigates the pretrial discovery process empirically. Using data from an interview survey of both attorneys in 369 federal civil cases, and by employing a simultaneous-equations tobit econometric model, I identify factors that determine the plaintiff’s and defendant’s discovery levels. The four main results show that the discovery behaviors of plaintiffs and defendants are different, but interdependent. First, the plaintiff chooses an amount of discovery by examining a case’s underlying fundamentals, such as the amount at stake. The plaintiff does not increase her discovery in response to increased discovery by the defendant. Second, the defendant does not rely on fundamentals. Instead, the defendant chooses a discovery amount that mirrors the plaintiff’s amount. Third, the plaintiff and defendant respond to their adversary’s apparent discovery aggression differently. The defendant responds by conducting more discovery than she otherwise would have, almost exactly tit-for-tat. In contrast, the plaintiff conducts less discovery than otherwise. Fourth, the nature of an attorney’s fee arrangement influences the attorney’s discovery behavior substantially.