Back to the future: Discovery cost allocation and modern procedural theory

This Article questions the current model of discovery cost allocation, which requires the producing party to bear the expenses associated with its opponent's discovery requests. The current presumption forces the producing party to fund a portion of its opponent's case, transforming discovery costs into a de facto litigation subsidy. This hidden subsidy not only unjustly enriches the requesting party, but it also gives rise to troubling implications from the perspectives of democratic, economic, and constitutional theory. To remedy this foundational problem with the prevailing presumption, this Article presents two constructive proposals. The first proposal suggests a solution: rewriting a new presumption for discovery cost allocation on a clean procedural slate. The second proposal explains how judicial attitudes toward discovery cost allocation can be reshaped under the current procedural framework.