Discovery Cost Allocation: Comment on Cooter and Rubinfeld

Discovery practice continues to be the single most troubling element of contemporary procedure. To be sure, the system seems to work well in a high proportion of all federal cases. The proportion may seem astonishingly high in relation to the amount of attention devoted to discovery. The discovery problems that occur in a relatively small proportion of the federal caseload, however, impose serious burdens on the parties and the court system. Every proposal that addresses discovery abuse deserves serious attention. These comments focus on the discovery abuse portion of the paper by Cooter and Rubinfeld. Questions are posed that may have persuasive answers. Whether or not there are persuasive answers, the paper is a great success because it forces consideration and reconsideration of the very nature of discovery. Much can be learned by grappling with this proposal