Charles S. Fax Discusses This In A Fall 2017 Article in ABA’s Section of Litigation News Magazine.
In an article in the Fall 2017 edition of the ABA’s Litigation News magazine, Charles S. Fax, Litigation News Associate Editor, observes that at the time his article went to press only four cases had discussed costs-shifting after 2015 amendments to Federal Rule of Civil Procedure 26 expressly allowed for the court to order allocation of expenses against a discovery-requesting party. The reported decisions, with varying results, are In re Buccaneer Resources, LLC, 2015 Bankr. LEXIS 4203 (Bankr. S.D. Tex. Dec. 10, 2015); Gaudet v. GE Industrial Services, 2015 U.S Dist. LEXIS 59902 (E.D. La. May 5, 2016); U.S. ex rel. Bibby and Donnelly v. Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS 178458 (N.D. Ga. May 26, 2016); and Lopez v. United States, 2017 U.S. Dist. LEXIS 40739 (S.D. Cal. Mar. 21, 2017). In trying to determine why there were so few reported decisions, Mr. Fax suggests that the answer may lie in the intersection of other amendments in 2015, such as the proportionality rule, narrowing the scope of discovery to information “relevant to a claim or defense,” elimination of the language “reasonably calculated to lead to the discovery of admissible evidence” in Rule 26(b), and the in terrorem effect of Rule 37(e) sanctions for willful e-discovery violations.