Can Plaintiffs Preempt The Preemption Defense By Demanding Preemption Discovery?

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