The whole business of discovery in civil litigation is dreary and depressing. In a mass tort, a defendant can rack up defense verdicts yet still incur discovery costs that exceed the damage amounts sustained by defendants found liable in other torts. Little wonder that the mass of defense lawyers in mass torts lead lives of quiet desperation. At least, that’s true for the poor drudges who must review documents for responsiveness and privilege.
We’ve been thinking about Henry David Thoreau. An anniversary is almost here. Walden was published on August 9, 1854. Thoreau built a cabin near the shore of Walden Pond and began living in it on July 4, 1845, “alone in the woods, a mile from any neighbor.” It was a declaration of independence. He lived there for two years, two months, and two days. The book took eight years to write, and there is much more artifice in it than straight nature reporting. Whatever you think about American exceptionalism, Thoreau exemplified many traits that, for better or worse, seem at the core of the American ethos: embrace of self-reliance and ecological preservation, and stand-offishness with respect to politics and society. We wondered whether Thoreau wrote anything about discovery. Our well-worn volume of Walden contains an index, but we found no reference to “discovery.” Nor was there a word about document requests. The best we could do was the famous passage in the “What I Lived For” chapter that explains the project at hand: “I went to the woods because I wished to live deliberately, to front only the essential facts of life, and see if I could not learn what it had to teach, and not, when I came to die, discover that I had not lived.” There’s that word “discover,” but we suspect Henry had something else on his mind.