One-Way Fee Shifting after Summary Judgment

Abstract

New, defendant-friendly discovery amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015. Although the discovery amendments created more controversy than perhaps anything the rulemakers have done in recent memory, defense-side advocates are pressing a still more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. We share the view of most commentators that so-called "requester pays" is too extreme. But we also think the current regime — so called "producer pays" — errs too far in the other direction (even after the new amendments to the rules). In this article, we rely on economic analysis to offer a middle way: to ask plaintiffs to pay the cost of responding to their discovery requests only if they do not find anything trial worthy in those requests and lose their cases on summary judgment. Although Congress certainly has the power to implement our proposal, we believe that the rulemakers may be able to do so on their own as well.