Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules

Abstract

Prior to the Federal Rules of Civil Procedure ("Federal Rules"), discovery in civil cases in federal court was severly limited. The Federal Rules discovery provisions dramatically increased the potential for discovery. Authorized by the Rules Enabling Act of 1934 ("Enabling Act"), the Federal Rules became law in 1938. The Enabling Act was preceded by a twenty-three year battle, spearheaded primarily by a committee of the American Bar Association. During the Enabling Act debate, discovery was largely ignored. Attitudes about discovery changed significantly between 1932 and 1946. This paper addresses the questions of how and why the change occurred, what reservations the Federal Rules drafters and others had about the new discovery provisions and what future procedural reformers can learn from this earlier experience.