“Skin in the Game: A Proposed Co-Pay Requirement for Discovery-Requesting Parties” by Robert D. Owen and Francis X. Nolan, WLF, excerpt:
Economics teaches that underpriced commodities are inevitably overconsumed. This truth has become increasingly evident in the world of large-litigation discovery over the last decade. Requesting parties (typically plaintiffs) are not effectively limited by outside forces to moderate the breadth of the discovery, nor are they incentivized to curb excess demands. Discovery is currently free to requesting parties, and judges have limited time to mediate and resolve inevitable discovery disputes. Accordingly, discovery has spun out of control….
This Legal Backgrounder first explains how litigation has reached the current tipping point, and then offers examples of recent attempts by the Committee and the judiciary to push back against rising discovery costs. The publication concludes by offering a basic outline for a percentage-based requestor-pay rule, while also noting the advantages and hurdles attendant with such a proposal.