From the Federalist Society podcast series, Litigation Practice Group, in August:
A “requester pays” amendment to the Federal Rules of Civil Procedure (FRCP) would require that those seeking discovery pay for its costs, moving federal civil litigation away from the current “American rule” that requires all parties to bear their own litigation expenses, including the costs of responding to discovery requests. Supporters of “requester pays” argue that discovery requests can be so broad and costs can be so high that they become a disincentive to defend. Opponents claim that the amendment would make legal proceedings even more expensive for individual litigants, who would be unable to pay for the discovery necessary to make a case against larger and more powerful defendants. Here to discuss this idea are Alex Dahl of Brownstein Hyatt Farber Schreck LLP and Professor Benjamin Spencer of UVA School of Law.
One Comment
How about “loser pays?”
The plaintiff’s bar argues straightforwardly for the costs to fall on defendants, wrongdoer and innocent alike, however wrongful may be the plaintiff. Businesses, who have virtually all the things and places to be searched, argue for the costs to fall on requesters, however wronged.
Justice calls for the wronged party to be made whole, whether plaintiff or defendant.
So, how about “loser pays?”
Or, even better, loser of the point in dispute of which the discovery provides evidence pays? Admittedly, the latter requires a more granular judgment by the finder of fact, but that’s a good thing anyway.