One of the issues that the federal Civil Rules Committee's
discovery subcommittee considered, but that eventually fell by the
wayside, on the way to the
2015 discovery rules amendments, were proposals to convert to a
"requestor pays" discovery system. That would be a
very significant change, and one of the criticisms that the other
side leveled at such a system was that only rich people (or at
least only rich plaintiff lawyers) could afford to bring suit,
given the prospect of having to pay for expensive discovery that
current system now gives plaintiffs for free.
Well, not for free. Nothing is free. The current
"producer pays" discovery system gives plaintiffs a
windfall by allowing them to demand production of millions of
dollars' worth of documents – and as importantly,
electronically stored information ("ESI") − and to
impose those costs almost entirely on defendants. As any
economist will tell you, any system that provides access to
something for free or
