Discovery Cost Allocation, Due Process, and the Constitution's Role in Civil Litigation

27 Pages Posted: 7 May 2018

Date Written: April 24, 2018


In recent years, both scholars and rule makers have begun to reconsider the long established practice of the producer-pays model of discovery cost allocation. There are many arguments, on both sides of the issue, as to whether this practice represents wise social policy. In this article, however, Professor Redish challenges the constitutionality of the producer-pays model when applied to defendants, under both the Equal Protection and Due Process Clauses. Professor Redish initially characterizes the cost of a litigant’s discovery as the requesting party’s cost, even though the initial outlay for those costs is made by the producing party. In doing so he reasons by analogy to the doctrine of quantum meruit. On the basis of this premise that the costs of discovery are appropriately seen as the costs of the requesting party, he characterizes the requirement that the producer of the discovery bear the costs incurred in making production as simply a forced subsidy of what are properly deemed the requesting party’s costs. Such forced subsidization, he argues, constitutes a deprivation of a defendant’s property, which can be justified under equal protection only if it is at least rational. He argues that absent a finding that plaintiff’s injury was in fact caused by defendant’s violation of plaintiff’s legal rights, it is irrational to distinguish a defendant from any other member of society as a potential subsidizer of plaintiff’s discovery costs. Under the Due Process Clause, unless the plaintiff has factually established the truth of his allegation of defendant’s fault before a neutral adjudicator, imposition of plaintiff’s discovery costs on defendant is unconstitutional because it is impossible to distinguish the defendant from any other potential subsidizer. Because discovery takes place at a point in the litigation process before any evidentiary showing has been made or any factual determinations have been made by a neutral adjudicator, Professor Redish argues, the deprivation of defendant’s property to subsidize plaintiff’s costs constitutes an unconstitutional deprivation of defendant’s property. According to Professor Redish, then, the issue of discovery cost allocation is not one of social or legal policy, but rather one purely of constitutional law.

Keywords: due process, discovery, constitutional law, equal protection, Federal Rules of Civil Procedure

JEL Classification: K10, K30

Suggested Citation

Redish, Martin H., Discovery Cost Allocation, Due Process, and the Constitution's Role in Civil Litigation (April 24, 2018). Vanderbilt Law Review, Forthcoming, Northwestern Law & Econ Research Paper No. 18-10, Northwestern Public Law Research Paper No. 18-11, Available at SSRN: or

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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