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 employment 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 shows 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 toward a theory of discovery in state civil courts.

The full text of this Essay can be found by clicking the PDF link to the left.


Debates over the health of state courts and the treatment of unrepre­sented parties are heating up, and the state courts system is approaching a critical moment. A new class of scholars argues that civil procedure in small claims looks radically distinct from traditional practice in federal courts and fails to vindicate full access to justice. 1 See, e.g., Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg & Alyx Mark, Judges in Lawyerless Courts, 110 Geo. L.J. 509, 511–13 (2022) [hereinafter Carpenter et al., Judges in Lawyerless Courts] (noting that most state civil court participants have to defend their rights and interests without legal representation in a system designed by and for lawyers); Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan & Alyx Mark, Studying the “New” Civil Judges, 2018 Wis. L. Rev. 249, 257–61 [hereinafter Carpenter et al., Studying] (highlighting the changed landscape in state court litigation in which the majority of litigants are unrepresented and, as a result, tend to fare poorly even in meritori­ous cases); Colleen F. Shanahan, The Keys to the Kingdom: Judges, Pre-Hearing Procedure, and Access to Justice, 2018 Wis. L. Rev. 215, 219–23 [hereinafter Shanahan, Keys] (observ­ing that state civil courts are not providing adequate remedies or justice for litigants, especially under-resourced litigants in cases with asymmetrical power relationships); Jessica K. Steinberg, Demand Side Reform in the Poor People’s Court, 47 Conn. L. Rev. 741, 743–45 (2015) [hereinafter Steinberg, Demand Side] (commenting that pro se litigants in state courts lack the same access to justice as represented parties). See also Paris R. Baldacci, Assuring Access to Justice: The Role of the Judge in Assisting Pro Se Litigants in Litigating Their Cases in New York City’s Housing Court, 3 Cardozo Pub. L. Pol’y & Ethics J. 659, 661–69 (2006) (exploring problems that pro se litigants face). Jessica Steinberg, for instance, argues that a “crisis” is brewing in more than nineteen million civil cases involving low-income parties who are often lawyerless. 2 Steinberg, Demand Side, supra note 3, at 741. Unlike the well-represented cases that populate the federal courts, more than 75% of state court claims involve at least one party without legal representa­tion. 3 Carpenter et al., Judges in Lawyerless Courts, supra note 3, at 511. Without experienced counsel, most low-income litigants cannot manage the complex procedures used by state courts. And, in a reversal of the federal norm, a large percentage of these state court cases involve large landlords or debt collectors as plaintiffs against low-income and unrepre­sented defendants. 4 See Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1716–17 (2022).

Despite reform efforts oriented at encouraging state judges to simplify procedures and embrace inquisitorial techniques, Colleen Shanahan and co-authors found in a path-breaking study that “[j]udges [have] main­tained legal and procedural complexity in their courtrooms.” 5 Carpenter et al., Judges in Lawyerless Courts, supra note 3, at 516. They con­clude that civil courts were “not designed for people without counsel” and are therefore failing to promote access to justice. 6 See id. at 511–13, 557. Even more, Lauren Sudeall and Daniel Pasciuti found in a study of eviction courts that unwieldy processes have turned state courts into nothing more than “a vehicle for rent collection.” 7 See Lauren Sudeall & Daniel Pasciuti, Praxis and Paradox: Inside the Black Box of Eviction Court, 74 Vand. L. Rev. 1365, 1368 (2021). This growing chorus of commentators agrees that the status quo is harming unrepresented parties, and it has, in turn, offered an array of reforms ranging from empowering active judges 8 See, e.g., Benjamin H. Barton, Against Civil Gideon (and for Pro Se Court Reform), 62 Fla. L. Rev. 1227, 1272 (2010) (arguing that “judges in pro se courts should replace the traditional role of neutral arbiter with active questioning aimed at ensuring that procedural and substantive justice prevails”); Steinberg, Demand Side, supra note 3, at 801 (arguing that judges should “be active, frame legal issues, and question parties and witnesses in order to develop legal claims”). and providing more unbundled legal aid, 9 See Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 Geo. J. Legal Ethics 209, 229–30 (1990) (“[R]estricting the profession’s monopoly should be seen as part of an overall strategy for expanding access to legal assistance.”); Steinberg, Demand Side, supra note 3, at 748 (explaining the benefits of unbundled legal services). all the way to engaging in deeper experimentation in state courts. 10 See Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg & Anna E. Carpenter, COVID, Crisis, and Courts, 99 Tex. L. Rev. Online 10, 17–19 (2020) [hereinafter Shanahan et al., COVID] (arguing that experimentation in state civil courts is essential to respond to “this moment of social change”).

Behind this developing maelstrom and buried in this emergent schol­arship is a surprising obstacle for unrepresented parties: a nearly non-existent and opaque discovery system. Steinberg, for instance, observed that unrepresented litigants “find it nearly impossible to manage . . . dis­covery.” 11 Steinberg, Demand Side, supra note 3, at 744. Likewise, Shanahan found in a large study of unemployment claims that “[d]iscovery procedures are limited[] and rarely used.” 12 Shanahan, Keys, supra note 3, at 226. Part of the reason for this missing discovery system is that some states have streamlined low-stakes litigation by explicitly prohibiting discovery. For instance, in eviction cases, Michigan, Pennsylvania, Texas, and arguably New York bar any discovery. 13 See infra notes 139–151. New York requires leave of court for any discovery requests. See infra notes 143–147. Even in contexts where motions to compel discovery are more common, one empirical study found that “judge[s] infrequently ruled on these motions.” 14 See D. James Greiner, Cassandra Wolos Pattanayak & Jonathan Hennessy, The Lim­its of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future, 126 Harv. L. Rev. 901, 919–20, 927, 934 (2013). Indeed, one major teaching of this entire literature is that “the law of state civil courts is largely unwritten” and heavily “informal” 15 Shanahan et al., COVID, supra note 12, at 14. and most of the work “happens in real-time, in the courtroom, with little to no discovery or exchange of pleadings.” 16 Carpenter et al., Judges in Lawyerless Courts, supra note 3, at 514.

These studies, however, leave open the question of whether discovery is an important and potentially underutilized reform tool or, by contrast, a mechanism that increases costs and ultimately harms unrepresented liti­gants. On the one hand, if the scholarship on federal discovery is right, missing discovery in state courts leaves aside a potential tool that can pro­mote pro-consumer or pro-employee changes in the law. And, without discovery, litigants who may need documents to assert claims or defenses are disempowered. Even more, litigants may miss discovery’s potential as an offensive weapon—to gain leverage in settlement negotiations, delay proceedings, or support counterclaims. 17 Greiner et al., supra note 16, at 965. In line with this thinking, Steinberg noted that in habitability cases, discovery could “play a central role . . . making it unlikely that tenants can succeed without attorney representation.” 18 Jessica K. Steinberg, Informal, Inquisitorial, and Accurate: An Empirical Look at a Problem-Solving Housing Court, 42 Law & Soc. Inquiry 1058, 1065 (2017) [hereinafter Steinberg, Informal] (noting that discovery and pretrial motions play a key role in habita­bility cases, which place unrepresented tenants at a distinct disadvantage as they are forced to navigate these complex procedures alone).

On the other hand, some scholars of the civil Gideon literature and state reformers have long advocated for procedural simplification and a rejection of complex practices like discovery. 19 See, e.g., Barton, supra note 10, at 1272–74 (arguing that procedural simplification is an alternative to civil Gideon); Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel Is Most Needed, 37 Fordham Urb. L.J. 37, 75–76 (2010) (arguing in favor of a right to civil counsel and exploring the importance of having skilled advocates); Richard Zorza, Some First Thoughts on Court Sim­plification: The Key to Civil Access and Justice Transformation, 61 Drake L. Rev. 845, 857–64 (2013) (arguing that simplifying the legal dispute resolution system is in the best interest of all civil litigants). Some state legislatures have explicitly banned discovery “in an effort to reduce costs and level the playing field for unrepresented litigants.” 20 Steinberg, Demand Side, supra note 3, at 797 n.309. For instance, setting aside the states that have eliminated discovery in eviction cases, California, New York, and Pennsylvania seriously limit discovery in cases involving claims for less than $10,000. 21 See infra notes 94–106. Colorado and Texas also limit discovery for cases under $100,000 and $250,000, respectively. Colo. R. Civ. P. 16.1(b), (k)(4); Tex. R. Civ. P. 169(a), 169(d)(1), 190.2. See also Seymour Moskowitz, Rediscovering Discovery: State Procedural Rules and the Level Playing Field, 54 Rutgers L. Rev. 595, 613 (2002) (noting that many states have limited the amount of discovery available to parties); Seymour Moskowitz, What Federal Rule­makers Can Learn From State Procedural Innovations 5–10 (May 10, 2010) ‌
(unpublished man­uscript),‌ https://www.uscourts.gov/sites/default/files/‌‌seymour_moskowitz_
what_federal_rulemakers_can_learn_from_state_0.pdf [https://perma.cc/GWG2-BVHV] [hereinafter Moskowitz, Federal Rulemakers] (explaining that “[t]he volume and type of allowable discovery in the states are now often differentiated by the amount in controversy”).
A committee of lawyers once advised Massachusetts family courts to create a simplified process for domestic relations cases that “would eliminate most formal discovery” because the process was a “stum­bling block[] faced by pro se litigants.” 22 Charles P. Kindregan, Jr. & Patricia A. Kindregan, Pro Se Litigants: The Challenge of the Future 21, 39 (1995), https://www.mass.gov/doc/pro-se-litigants-the-challenge-of-the-future/download [https://perma.cc/TX5P-M4KN]. To these states, discovery increases the complexity of a case, gives represented parties an upper-hand, and further unbalances litigation in their favor. Worse, it may empower sophisticated parties—debt collectors, landlords, employers, and corporations—with bargaining leverage and the threat of increased costs. Besides, whatever regulatory benefits discovery may bring in federal court are likely not achievable in small-stakes cases with straightforward fact patterns.

While scholars have identified important gaps in state court systems and potential problems, they have not defined with precision what the role of discovery should be in lawyerless courts, furnished a clear outline of discovery’s potential effects on these cases, or set the appropriate bound­aries of debate. The stakes, moreover, are significant as reforms to state courts hang in the balance. The resulting questions are clear: What, exactly, should the role of discovery be in lawyerless courts? Does “missing discovery” damage the development of state law? Or are state legislatures right that discovery harms unrepresented litigants? And, if so, what can reformers do about it?

This Essay takes on the task of answering these questions, providing an examination of discovery in state courts, and a detailed analysis of where discovery would have a positive or negative impact. Part I summa­rizes how state discovery differs in important respects from the federal sys­tem. It then provides a detailed catalogue of state discovery rules in three categories of lawyerless cases: landlord–tenant, debt collection, and family law disputes. This Essay places special emphasis on debt collection and eviction claims because they represent around 45% of all state cases and mostly involve unrepresented parties. 23 See generally Nat’l Ctr. for State Cts., Civil Justice
Initiative: The Landscape of Civil Litigation in State Courts (2015), https://www.ncsc.org/__data/‌assets/pdf_file/0020/13376/‌civiljusticereport-2015.pdf [https://perma.cc/7AJB-SHUD] (providing a comprehensive report on state civil litigation).

Part II then steps back to provide a theoretical framework to evaluate discovery, its potential benefits and costs, and whether there is room for discovery reform. At its core, this Part addresses the discovery catch-22: While discovery can bring benefits to lawyerless cases, it can also increase complexity to the point that it actively harms the interests of unrepre­sented litigants. That is why Part II explores the characteristics of cases in which discovery is most likely to promote fairness and accuracy without increasing complexity. There may well be a sweet spot for discovery reform, especially in areas where sophisticated plaintiffs—large landlords, debt collection companies, and banks with experienced counsel—litigate against lawyerless parties who allege serious and systematic wrongdoing. States should only impose disclosure obligations on sophisticated plaintiffs in complex cases, including warranty of habitability claims and violations of the Fair Debt Collection Practices Act (FDCPA). In this manner, this Essay highlights several design principles for any discovery reform effort. 24 Some of these include a few actionable items: States should not expand discovery across-the-board; small claims cases involving two unsophisticated parties should not enjoy broader discovery; most debt collection claims and any other cases that hinge on a single contract (without potential statutory defenses) should also retain either no discovery or few discovery obligations. See infra section II.D.

Finally, Part III introduces an experimental proposal: a civil open file statute that would force sophisticated landlords and debt collectors to assemble and produce a full record of relevant documents at the outset of litigation. These statutes would draw on the example of criminal open file statutes that force prosecutors to disclose to defendants their full investi­gatory record. But a civil analogue would be narrowly applied only to cases involving a significant asymmetry in resources and complex defenses or counterclaims by unrepresented parties. The idea follows a call from schol­ars to embrace a spirit of experimentation in state courts. 25 See, e.g., Shanahan et al., COVID, supra note 12, at 17–19 (arguing that transpar­ent experimentation is needed for state civil courts to respond to the COVID-19 crisis). And the idea also aligns with the civil Gideon literature that embraces legal assistance only for a subset of cases that involve significant interests, such as housing or child custody. 26 See supra note 21 and accompanying text.