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INBRIEF
LIBERTYTO
RUMMAGE
by
Stanley
R.
Rader
Y
ou'o think that living in a
society where the government
holds 4
billion
records on
prívate individuals, where private
agencies such as credit bureaus hold
countless more, where our lives a re
an open book, and we constantly a re
being watched, scrutinized and ex–
amined, that the U.S. legal system–
founded on the idea of t he dignity of
the individual- would provide sorne
defense into prying. In sorne ways, of
course, it does.
But in one very important way, our
legal system makes things much,
much worse.
Many people, accustomed to see–
ing Perry Mason on television expose
the real murderer in the course of a
courtroom tria!, never imagine that
a/1
the information about a given
case is gathered before tria! through
a time consuming legal procedure
known as "discovery." The idea is
that a court orders just about every
and anybody who has even the
remotest connection with a case to
answer any questions even
remotely
relating to it, which are put to him by
any of the parties, and to turn over
a/1
"relevant" papers. The theory is
that cverything about everyth ing
should be flushed out befare trial - so
there are never any Perry Mason–
type "surprises" in the courtroom.
The upshot of our current system
of discovery is that, if you are
un lucky enough to get yourself
involved in a lawsuit, you'll soon
conclude that you no longer have a
prívate life. lf
any
detail is relevant,
it's going to become part of a public
record .
Over the course of, like as not,
severa! years, you will practically be
drowned in an endless sea of deposi–
tions (cross examinations by the
other party's lawyer, under oath, as
in a courtroom, but without a judge
to ridc herd on irrelevant and frivo-
40
lous questions) and interrogatories
(written forms to fill out, which you
must answer or go to jail).
These sets of writtcn questions can
go on for hundreds of pages. Many
lawyers don't draw them up them–
selves, they simply copy them from
books. As such, the system is seri–
ously abused.
Business Week
maga–
zine, for example, summarizes dis–
covery with this appropriately acid
language:
"A typical practice is 'pushing,'
tying up opponents with months of
deposition taking, and harassing the
other side with interrogatories and
requests for documents that a re repi–
titious, irrevelan t , in t rusive and
sometimes nonsensical (lawyers joke
about interrogatories that ask five–
year-olds if they are married)."
" Justice delayed is justice denied,"
is an old maxim denoting an obvious
truth. The discovery system, by con–
trast, is responsible for sorne of the
ridiculously long court cases which
new plague American justice.
In one case, the famous IBM anti–
trust case, discovery has produced
(hold your breath)
30 million pages
of documents. More than
64 mil/ion
documents have had to be pulled
from IBM's fi les. True,
U.S.
vs
IBM
resembles less a court case than the
Thi rty Years War, but similar
abuses can be found throughout our
legal system.
Vital Rlghts at Stake
The problem is not just that our
unrestrained everything-you-ever–
wanted-to-know-about-your-oppo–
nent rules of discovery have turned
modern law into what
Time
maga–
zine calls a "Serbonian bog'' (after a
mythical place in Milton's
Paradise
Lost
where whole armies got lost).
Rather, it is that vital rights and
freedoms are all too often wiped out
at the same time.
Both American and English courts
a re acutely aware of individual rights
and human dignity when the defen–
dant is charged with a criminal
offense. But in civil suits important
constitut iona l issues often go unno–
ticed.
As
1
pointed out in the May 1979,
issuc of this magazine, the framers of
the U.S. Consti tution well remem–
bered the infamous
general
search
warrants used by British Crown offi–
cers. These warrants allowed the
officers to burst unannounced into
prívate homes and businesses and go
rummaging around until they found
anything that looked "suspicious."
Because of such odious behavior, the
framers incorporated what is one of
the most important (and in criminal
law most widely used) clauses in the
Bill of Rights-the 4th Amend–
ment's provision for freedom from
unreasonable search and seizure.
Later the U.S. Supreme Court
declared that the underlying idea
behind this Amendment was the
" right to privacy."
We should understand here why
the right to privacy is so important. l t
is not sorne perverse legal loophole to
Jet crimina ls go free.
lt
is absolutely
vita l to human dignity itself, because
the right to privacy is, along with a
few other freedoms (freedom of rel i–
gion, freedom of speech and the right
to own prívate property), one of the
absolute requirements for the cxer–
cise of every other freedom.
The right to privacy guarantees to
the individual a measure of sover–
eignty against man's .government.
lt
puts "off limits" to man's govern–
ment large and important areas of
human life over which
only God
has
a legitimate claim.
This is why discovery as a legal
procedure is important to you, even if
you never set foot inside of a court–
room. By means of discovery, areas
of life over which man's government
has no business
do indeed become
the government's business, and no
area of life can ever be "sacred"
against such encroachment.
Whose House Wlll Be Safe?
Martín Dockray, a law professor at
the University of London, points out
in the distinguished British law jour-
The
PLAIN TAUTH