Ask and Ye Shall Pay?

November 25, 2015

Property of PRESENTERMEDIA and is used here by license granted to the author.

Property of PRESENTERMEDIA and is used here by license granted to the author.

This is the eighth in a series of articles where the authors of the Federal Civil Rules Handbook – Steve Baicker-McKee and Bill Janssen – discuss some of the more significant amendments to the Federal Rules of Civil Procedure that take effect in less than two months’ time.  The newest edition of the Federal Civil Rules Handbook (available November 2015) offers detailed commentary on each of the coming amendments, and other important recent changes in federal civil practice. 

Who should pay the costs of producing discovery: the requestors or the responders?

This powerfully-charged question remains, in the newly-amended Rules, largely where it was left before—with the presumption that responders should normally pay the production costs, though the trial judge has the discretion to shift costs. What is new is the explicit codification of this discretion.

The Civil Rules Advisory Committee amended the district courts’ authority for issuing protective orders (Rule 26(c)) by formalizing what the U.S. Supreme Court has acknowledged for almost forty years: that Rule 26(c) inferentially permitted judges to shift costs at their discretion.  As amended, Rule 26(c) now expressly approves the issuance, upon good cause, of a protective order specifying the terms Federal Civil Rules Handbookfor disclosure or discovery, “including … the allocation of expenses.”  This revision converts the Supreme Court’s interpretation of the Rule into an official authority grounded in the language of the Rule itself.  A district judge who wants to cost-shift discovery now has two legs to stand on: the Supreme Court’s construction and the Rule’s syntax.  The Advisory Committee intended this explicit recognition to quiet those who still persist in contesting a judge’s authority to cost-shift.

But the Advisory Committee stopped short of a wholesale paradigm shift in the funding of civil discovery.  This explicit recognition in the amended Rule, emphasized the Committee, “does not imply that cost-shifting should become a common practice.”  Rather, “[c]ourts and parties should continue to assume that a responding party ordinarily bears the costs of responding.”

The Advisory Committee’s accompanying notes are not part of the amended Rule and do not dispositively settle interpretative questions concerning the meaning and application of the Federal Rules of Civil Procedure.  But those notes have long been given great weight in construing Rule text.  Assuming a similar respect here, the amended Rule 26(c) language should:

(a) erase any doubt as to the federal trial judge’s right to cost-shift;

(b) establish a “good cause” standard for exercising that right; and

(c) have the functional effect of retaining the longstanding practice of requiring responders, not requestors, to fund the costs of producing discovery.

Some may see a greater prospect for a requestor-pays paradigm shift if the “proportionality” amendments (discussed earlier in this blog series) fail to yield their full promise.  If judges more often opt for a requestor-pays approach to civil discovery, the likely effect would be to reduce the incidence of sprawling and expensive discovery demands.  That approach to gaining proportionality is not, however, what the 2015 amendment to 26(c) endeavors to achieve.  The amendment is thus notable for the clarity it adds, not the sea-change it could have signaled.