A Proposed "American Rule" for E-Discovery

The Court of Appeals recognized in the famous Mighty Midgets case that in contrast with the legal system of Great Britain, the "American Rule" is that each litigant generally pays their own way. They will not recover as damages the amount expended in the successful prosecution or defense of their rights, including attorney's fees.

The American Rule has some notable exceptions, but the full expenses of litigation generally are not recoverable because of "a fundamental legislative policy decision." The idea is to not "discourage submission of grievances to judicial determination" and to encourage free and equal access to the courts, without fear of penalties apart from the merits. Such a system, the Court of Appeals has recognized, "promotes democratic and libertarian principles."

Under the logic of the American Rule, a corollary might be that neither party shall be enabled to shift their discovery expenses to the other side, or cause the other side to incur expenses beyond those that are "normal" for the case. This begs a bunch of questions in the context of electronic discovery, because of the new opportunities to create or impose litigation costs.