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. 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. 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 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. A letter from the U.S. Chamber of Commerce is representative of this movement: "We also suggest that as the Committee contemplates proposals in the future, it should consider amendments that address the root cause of our broken discovery system: the rule that the producing party bears the cost of production. This system, under which a plaintiff can propound broad and costly discovery requests on a defendant before there is any finding of liability, not only encourages unwieldy and costly discovery requests, but also runs afoul of a defendant's fundamental right to due process. As a result, 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."
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. After setting forth his argument that the producer-pays rule violates due process, Mr. Beisner wrote: "In light of the due process concerns raised by the current producer-pays discovery regime, the Committee should consider additional amendments to the federal rules. One solution would be to establish a general rule that each party pays the costs of the discovery it requests, subject to adjustments by the court."
The Lawyers for Civil Justice, a self-declared proponent of "the corporate and defense perspective on all proposed changes to the FRCP," has expressly stated: "Our current federal rulemaking agenda is focused on reining in the costs and burdens of discovery through FRCP amendments [including] ... development of incentive-based 'requester pays' default rules." Needless to say, revising the default producer-pays rule in this way would tum the current approach on its head, presumptively saddling requesters with an ex ante burden of funding the expense associated with responding to their discovery requests."
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, these questions are: 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? In the passages that follow, we will explore the current landscape of discovery expenses in the federal system and the rules governing their allocation (Part I), followed in Part II by an exploration of the various purported difficulties with a producer-pays approach. Part III will then build on these discussions to develop a rational approach to cost allocation that appropriately balances the interests of litigants on all sides of civil disputes in federal court.
34 The Review of Litigation 769-813 (2015)
Spencer, A. Benjamin, "Rationalizing Cost Allocation in Civil Discovery" (2015). Faculty Publications. 1963.