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Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd
Aligning Incentives And Cost Allocation In Discovery, Jonathan R. Nash, Joanna M. Shepherd
Faculty Articles
Recent proposals to revise Federal Rule of Civil Procedure 26 to incorporate cost allocation of discovery have sparked considerable controversy. Advocates for reform argue that replacing the long-standing “producer-pays” presumption with something more akin to a “requester-pays” rule would better align economic incentives and reduce litigants’ ability to wield discovery as an instrument to force settlement. Opponents argue that such a reform would limit access to justice by saddling requesters with an ex ante burden of funding the opposition’s discovery.
In this Article, we explain that either a rule requiring both parties to share the costs of discovery (“cost-sharing rule”) …
Bespoke Discovery, Jessica Erickson
Bespoke Discovery, Jessica Erickson
Law Faculty Publications
The U.S. legal system gives contracting parties significant freedom to customize the procedures that will govern their future disputes. With forum selection clauses, parties can decide where they will litigate future disputes. With fee-shifting provisions, they can choose who will pay for these suits. And with arbitration clauses, they can make upfront decisions to opt out of the traditional legal system altogether. Parties can also waive their right to appeal, their right to a jury trial, and their right to file a class action. Bespoke procedure, in other words, is commonplace in the United States.
Far less common, however, are …