Vanderbilt Law Review

First Page



The issue of discovery cost allocation, long ignored by both courts and scholars, has become something of a cause celebre in the last few years. An article which I coauthored on the subject was part of that renewed interest.' In 2011, my former student, Colleen McNamara, and I wrote an article urging a dramatic change not only in the manner of how discovery costs are allocated, but an entirely new way of understanding the concept of discovery costs. 2 Since the original promulgation of the Federal Rules of Civil Procedure in 1938, it has been universally assumed that discovery costs appropriately lay where they fell. In other words, producing parties always bore the costs involved in producing the discovery sought by the requesting party. But it was not as if either the courts, scholars, or rulemakers ever thought this matter through. Indeed, no Federal Rule explicitly dealt with the issue, and as far as my coauthor and I were able to ascertain, no one ever thought seriously about the allocation of discovery costs. Even in later years, when the burdens, costs, and inefficiencies of the discovery process (especially in complex cases) became a serious concern, few thought to turn to discovery cost allocation as a potential means of ameliorating the problem.