Rule 37(a)'s Loser-Pays 'Mandate': More Bark than Bite

Abstract:     
There is an ongoing debate among academics, commentators, and practitioners regarding the costs of civil litigation and the functionality of the discovery provisions of the Federal Rules of Civil Procedure. Instead of overhauling the discovery rules, as many academics and commentators have proposed, the first step in the fight against discovery abuse should be strict enforcement of the rules’ plain language. And, the starting point should be Rule 37(a)’s mandate that expenses, including reasonable attorney’s fees, be awarded to the prevailing party on a motion to compel discovery. The courts’ widespread failure to enforce this provision has significant effects on the courts and litigants, however, this Article proposes a somewhat “simple” solution to the problem: Courts must adhere to the plain language of and legislative intent behind Rule 37(a) and award the amount of expenses requested by the prevailing party with the presumption that the amount is accurate and appropriate. Only in the event a judge believes an attorney is violating his or her duty of candor to the court should the judge deny the expense request. In that instance, the judge — per his or her duty under the relevant code of judicial conduct — should report the requesting attorney to the appropriate disciplinary authority for further investigation. Thus, Rule 37(a) — in conjunction with the rules of professional conduct — provides the necessary framework for curtailing discovery abuse; it simply must be enforced.

Number of Pages in PDF File: 41

Keywords: civil procedure, discovery, discovery rules, discovery sanctions, Federal Rules of Civil Procedure, discovery misconduct

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