The presumption that each side pays its own way, and when it shifts.
Esshaki Legal Media TeamCurrent as of February 2023
The producing party ordinarily bears the cost of production, and courts have
discretion to shift costs in defined circumstances.
The presumption. Each party bears its own discovery costs, reflecting the
allocation built into the rules.
Proportionality as the primary control. Rather than shifting cost, courts
more often limit the discovery — narrowing custodians, date ranges and sources —
which achieves the same result more cleanly.
Inaccessible sources. A party need not provide discovery from sources it
identifies as not reasonably accessible because of undue burden or cost. The
requesting party may still obtain it on a showing of good cause, and cost
shifting is commonly ordered as a condition.
Factors. The specificity of the request, the availability of the information
from other sources, the total cost compared with the amount in controversy and
with the parties’ resources, the relative ability to control costs, the
importance of the issues, and the relative benefit to the parties.
Non-parties are entitled to protection from significant expense, and courts
order requesting parties to pay non-party production costs more readily than
between parties.
Practical approach. Offer a phased production from accessible sources first,
with any further phase conditioned on cost sharing. Courts respond well to it.