The cost-shifting analysis employed by the federal courts in ruling on discovery disputes is flawed. There is tremendous variability in how courts interpret the factors guiding the analysis. There is tremendous variability in the information courts rely on in deciding whether to preclude the discovery or shift its costs. The result is waste for the litigants, courts, and society as a whole. This Article argues that there is a better way: mandate cooperation before cost shifting. The courts should condition proportionality and cost-shifting rulings on cooperation. The cooperation should be substantive: require disclosure of objective information about the disputed discovery and, if costs are shared, share control over the process. Cooperation will not come about by exhortation or proclamation; it will come if the cost of discovery, or the discovery itself, hangs in the balance. With that comes the possibility of reducing costs. Asking “is the discovery unduly burdensome” results in a different answer than asking “can it be done more efficiently”? This Article argues that the courts should ask the latter question first and require cooperation in answering it. Federal Rule of Civil Procedure 1, with its mandate to construe the rules to seek the “just, speedy, and inexpensive determination of every action,” demands it.
Andrew M. Pardieck,
The Shifting Sands of Cost Shifting,
69 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol69/iss2/7