U.S. discovery traces its roots to the 1789 Judiciary Act, which legal historians generally view as a poorly-drafted and poorly-conceived piece of legislation.
One of the worst aspects of U.S. litigation, and there are many, is its ridiculous discovery rules, which can result in far more work than the underlying issues in a given dispute warrant, and far too many associated costs, reducing the efficiency of U.S. dispute resolution to a crawl, and resulting in pointless fishing expeditions which almost never uncover the “smoking gun” that Parties are seeking. U.S. discovery is far more useful as a procedural club to beat the opposing party into submission or settlement, than as a tool for determining the underlying truth, and it rarely serves the interests of litigants, although it can produce significant value for law firms.
One of the key reasons why international arbitration is considered to be swifter and less expensive than litigation is precisely because there is far less extensive discovery than in certain common law jurisdictions. This is increasingly being undermined due to the U.S. judiciary’s arguably flawed interpretation of Section 1782.