Professor Moss Case Analysis

Having surveyed the problems present in modern discovery practice, Professor Moss concludes the problem lies in the mistiming of discovery decisions. In order to make efficient decisions concerning discovery, courts must separate low-merit case from those deserving more discovery. Consequently, Moss argues, the solution lies in the proper sequence of discovery and the consideration of motions for summary judgment. Noting Rule 56 does not require all discovery to be completed before summary judgment, Moss argues certain discovery “must be denied because courts cannot tell whether the case is meritorious (and therefore is deserving of more discovery than usual) . . . before summary judgment.” Continuing the argument, Moss asserts: “summary judgment denial is a determination that the case
The first set concerns focus on judges’ ability or willingness to make decisions: first, summary judgment may not clarify the merits of case; second, judges may deny discovery or grant summary judgment excessively; and third, judges may be reluctant to place a trial on hold while the parties reargue a discovery dispute. The other two concerns Moss addresses concern the fit of this particular solution: whether courts should use alternatives such as sampling and cost-shifting; and the possibility of evidence loss during the delay of discovery. Importantly, the majority, and the most pressing of the concerns with this suggestion, lie in the ability or willingness of judges to cooperate with such a plan. Placing another responsibility—even requiring judges to hear certain discovery disputes twice in certain circumstances—on the judiciary seems unworkable when considering the massive time and resource restraints it already operates under. Although it could make a significant difference in an extremely well-financed and resourced judiciary, Moss’s creative proposal would be impractical to