One-Way Fee Shifting After Summary Judgment

New, defendant-friendly amendments to the Federal Rules of Civil Procedure took effect in December 2015. Included in the amendments were several provisions designed to curb the cost of discovery. Although modest, the discovery-related provisions created more controversy than perhaps anything the rule makers have done in recent memory. Yet the new amendments were only part of what corporate defendants asked the rule makers to do.

Left undone was a much more ambitious proposal: to outright flip who pays for discovery, from the party who produces the discovery to the party who requests it. To the surprise of many commentators, the rule makers placed this "requester pays" proposal on their agenda for serious study. But scholarly commentary has been very critical, and the rule makers have tabled the proposal indefinitely. It is unclear whether the rule makers will take up this proposal again