A Brief History of Requester-Pays and Other Incentive Systems to Supplement Judicial Management of Discovery
16 Pages Posted: 8 Jan 2019
Date Written: November 22, 2018
The paper begins with a brief history of civil discovery and argues that the development of the Xerox machine in 1959 led to the problem of overuse (or abuse) of discovery. Next it criticizes the Supreme court decision in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), for not providing specific guidance for when judges should allocate costs of complying with discovery requests to requesters rather than producers. It then reviews six significant contributions to the law and economics of civil discovery by Elliott, Setear and Easterbrook, Cooter and Rubinfeld, Redish and McNamara, and Robert Bone. The paper argues that the rules for civil discovery should create incentives to produce a socially efficient level of discovery, such that the parties have enough discovery to reach a just result in settlement or at trial but without so much discovery that its costs become an impediment to reaching a just result in settlement or at trial. It furthers suggests that the costs of discovery are a joint product of activity by both the requesters and the producers of information, and therefore that the allocation of costs is better done retrospectively when it is clearer whether the information was actually needed to produce a fair result.
Keywords: civil procedure, discovery abuse, economic incentives
JEL Classification: B10
Suggested Citation: Suggested Citation