Law Commons^™

Back To The Future: Discovery Cost Allocation And Modern Procedural Theory, Martin H. Redish, Colleen Mcnamara

Martin H Redish

It has long been established that as a general rule, discovery costs are to remain with the party from whom discovery has been sought. While courts have authority to "shift" costs in an individual instance, the presumption against such an alteration in traditional practice is quite strong. Yet at no point did the drafters of the original Federal Rules of Civil Procedure ever make an explicit decision to allocate discovery costs in this manner. Nor, apparently, did they (or anyone since) ever explain why such an allocation choice is to be made in the first place. As a result, our …