By James Stone

For incarcerated people litigating pro se, the civil discovery process is vitally important. When imprisoned litigants lack meaningful access to discovery, their cases become swearing contests they are bound to lose, and wrongdoing in prison goes unaddressed. Yet for these same plaintiffs, civil discovery is defunct. The vast majority of incarcerated plaintiffs, including those with promising or meritorious claims, are unable to navigate either to or through litigation’s discovery phase. Part diagnosis and part treatment, this Article is the first to explore in depth how the discovery process—as designed and implemented—fails those pursuing civil-rights claims against their jailers, betraying both a crisis in prison litigation and a failure of our procedural regime.

Relying on both case research and extensive interviews with federal judges, staff attorneys, prison rights lawyers, formerly incarcerated people, and prison officials, the Article chronicles prison discovery’s written and unwritten rules and their failures. It begins with the Federal Rules of Civil Procedure, which map awkwardly or not at all onto prison litigation. It then discusses the much broader amalgam of practical impediments to evidence gathering in prison. These include profound informational asymmetries, resource disparities, and hostility between prison defendants—who create and control much of the evidence relevant to incarcerated people’s claims—and imprisoned plaintiffs.

The Article then scrutinizes the dockets and filings of two hundred recent federal cases arising out of two different prisons in two different districts: Louisiana State Penitentiary in Louisiana and Menard Correctional Center in Illinois. The research reveals startling disparities between the districts’ case-management decisions and cultures, resulting in stark differences in prison litigants’ discovery prospects. Incarcerated litigants’ current chances of evidencing and vindicating claims may be largely contingent on the district in which their prison sits—what some incarcerated people call “justice by jurisdiction.” Arguing that this situation is both untenable and preventable, the Article suggests multiple concrete avenues for reform.