Rationalizing Cost Allocation in Civil Discovery

45 Pages Posted: 28 May 2016

See all articles by A. Benjamin Spencer

A. Benjamin Spencer

Harvard Law School; University of Virginia School of Law

Date Written: March 17, 2016


A movement is afoot to revise the longstanding presumption that in civil litigation, the producing party bears the cost of production in response to discovery requests. A proposed amendment to Rule 26(c) - slated to take effect in December 2015 - makes explicit the authority of courts to issue protective orders that shift discovery costs away from producing parties. But this authority is not new; what is new is what may be coming next - an undoing of the producer-pays presumption itself. Thus far, the sentiment to move in this direction has been slightly below the radar, advocated - on constitutional and policy grounds - by pro-business interest groups and advocates before the Advisory Committee on Civil Rules in letters urging them to place this issue on its agenda.

Given indications that the Advisory Committee will indeed take up the issue of cost shifting in the context of civil discovery, now is an apt time to evaluate the producer-pays rule and the claims of those urging its demise. Specifically, to what extent is the producer-pays rule imposing costs on parties in litigation; are there fairness, policy, or constitutional considerations that warrant a revisiting of the rule; and, ultimately, what would a rational approach to discovery cost allocation look like? This article explores the current landscape of discovery expenses in the federal system and the rules governing their allocation, explores the various purported difficulties with a producer-pays approach, and then builds on these discussions to imagine a rational approach to discovery cost allocation that appropriately balances the interests of litigants on all sides of civil disputes in federal court.

Keywords: Discovery, due process, Rule 26, proportionality, American Rule, English Rule

JEL Classification: K1, K19, K4, K40, K41, K49

Suggested Citation

Spencer, A. Benjamin, Rationalizing Cost Allocation in Civil Discovery (March 17, 2016). Review of Litigation, Vol. 34, No. 4, 2015. Available at SSRN: https://ssrn.com/abstract=2785645

A. Benjamin Spencer (Contact Author)

Harvard Law School ( email )

1525 Massachusetts Ave.
Cambridge, MA 02138
United States

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/11916/Spencer

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434.924.3572 (Phone)

HOME PAGE: http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/2299812

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