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One-Way Fee Shifting after Summary Judgment

36 Pages Posted: 1 Oct 2016 Last revised: 26 Jan 2017

Brian T. Fitzpatrick

Vanderbilt Law School

Cameron T. Norris

Vanderbilt University - Law School

Date Written: September 29, 2016

Abstract

New, defendant-friendly discovery amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. Although the discovery amendments created more controversy than perhaps anything the rulemakers have done in recent memory, defense-side advocates are pressing a still more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. We share the view of most commentators that so-called "requester pays" is too extreme. But we also think the current regime — so called "producer pays" — errs too far in the other direction (even after the new amendments to the rules). In this article, we rely on economic analysis to offer a middle way: to ask plaintiffs to pay the cost of responding to their discovery requests only if they do not find anything trial worthy in those requests and lose their cases on summary judgment. Although Congress certainly has the power to implement our proposal, we believe that the rulemakers may be able to do so on their own as well.

Keywords: Discovery, Fee Shifting, Litigation, Civil Procedure, Law and Economics

Suggested Citation

Fitzpatrick, Brian T. and Norris, Cameron T., One-Way Fee Shifting after Summary Judgment (September 29, 2016). Vanderbilt Law Research Paper No. 17-06. Available at SSRN: https://ssrn.com/abstract=2845627 or http://dx.doi.org/10.2139/ssrn.2845627

Brian Fitzpatrick (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-4032 (Phone)

Cameron Norris

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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