Golden Gate University Law Review


For over a decade, judicial decisions have “authorized” the CFTC to conduct expedited discovery irrespective of 26(d)(1)’s structure and text. Instead, courts typically allow discovery because either: (i) “good cause” exists, or (ii) for no articulated reason at all. Consider that the so-called Good-Cause Test merely proclaims, “[g]ood cause exists for the plaintiff [CFTC] to conduct expedited discovery . . . .” Hence, judicial decisions have developed the doctrine in ways that are attenuated from 26(d)(1). The overall result is if the Commission asks for accelerated discovery, then courts will grant such relief. This is somewhat unsurprising because the very decisions—the court orders—that “authorize” early discovery are written by the CFTC and signed by federal judges with little if any modification.

In Part I, this Article describes the CFTC expedited discovery context. Then, Part II presents courts’ illegitimate development of CFTC expedited discovery. Part III follows by showing how to legitimize the doctrine through the historical blueprint. Part IV concludes this Article by explaining the imperative for legitimacy: why courts should return CFTC expedited discovery to 26(d)(1).

Cite as: 42 Golden Gate U. L. Rev. 393 (2012).