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Vanderbilt Law Review

First Page

2145

Abstract

symposium organized by the Vanderbilt Law Review to discuss the future of discovery in the United States.' More specifically, the topic for discussion was an ongoing debate in the United States about proposals by the U.S. Chamber Institute for Legal Reform and Lawyers for Civil Justice to adopt a "requestor-pays" discovery rule. In a requestor-pays system, each party pays for the discovery it seeks, which includes the costs of discovery belonging to the other parties to the litigation. It is based on the theory that a requestor-pays rule will encourage each party to manage its own discovery expenses and tailor its discovery requests to its needs by placing the cost-benefit decision on the requesting party. It is intended to discourage parties from using discovery as a weapon to force settlements without regard to the merits of a case. At the opposite end of the spectrum is a discovery system known as "producer-pays," which is presently used in the United States. Under this system, the party producing the documents must pay to locate, identify, list, and make available the documents relevant to the litigation at its own expense.

The genesis of the producer-pays presumption is largely an accident of history. Historically, certain limitations on discovery production existed simply due to the form of discovery sought. When records were kept only on paper and photocopying was unavailable, the cost of providing discovery was minor. An implicit assumption arose that the producing party would pay. Today, the impact of this discovery system is particularly dramatic when a party has made massive discovery requests. Critics of today's system argue that discovery is often used as a weapon to impact the outcome of a case. As an example, where litigants request substantial volumes of information, that information must then be collected and reviewed by the producing party at considerable expense.

This Article examines what is happening in some other countries with respect to requestor-pays rules to help inform the debate. It will canvass relevant discovery rules in four countries that have elements of both producer-pays and requestor-pays systems-Australia, Canada (the common law provinces and Quebec separately), Guernsey, and Singapore. This Article also comments briefly on how those rules are working from an access-to-justice perspective. In each country, the general approach to document discovery is that each party to a lawsuit has an automatic obligation to locate, identify, list, and make available for inspection documents relevant to the matters at issue in the litigation at its own expense. Again, this is called the producer-pays system of discovery."

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