Rationalizing Cost Allocation in Civil Discovery

• Published in: The Review of litigation Vol. 34; no. 4; p. 769
• Main Author: Spencer, Benjamin
• Format: Journal Article
• Language: English
• Published: Austin University of Texas, Austin, School of Law Publications, Inc 01.10.2015
• Subjects: Attorneys; Civil procedure; Committees; Costs; Discovery rule; Due process of law; Federal court decisions; Federal Rules of Civil Procedure; Fees & charges; Judges & magistrates; Legal fees; Pretrial discovery; Production costs; Provisions; State court decisions
• ISSN: 0734-4015

An amendment to Rule 26(c)-which took effect in December 2015-makes explicit courts' authority to issue protective orders that shift discovery costs away from producing parties.* 1 2 But this authority is not new;3 what is new is what may be coming next-an undoing of the producerpays presumption itself. [...]far, the sentiment to move in this direction has been slightly below the radar, advocated by probusiness interest groups and advocates before the Advisory Committee on Civil Rules in letters urging the Advisory Committee to place this issue on its agenda. [...]the Committee should consider, over the longer term, an amendment requiring each party to pay the costs of the discovery it requests, subject to adjustments by the court.4 The topic was treated even more extensively in a letter addressed to the Judicial Conference Committee on Rules of Practice and Procedure (the Standing Committee) from John H. Beisner, a partner at Skadden, Arps, Slate, Meagher & Flom who has testified before Congress on behalf of the U.S. Chamber of Commerce.5 After setting forth his argument that the producer-pays rule violates due process, Mr. Beisner wrote: