Discovery as Strategic Search: A Theory of Litigation Burden and Procedure

This paper provides an equilibrium model of discovery as strategic search. Both parties select search intensities where the quantity and quality of evidence uncovered are stochastic. Discovery intensity leads to both own-party costs as well as externality costs. Persuasive plaintiff (defendant) discovery increases (decreases) the plaintiff’s payoff. Thus, parties will have best-response curves of opposite slopes. The model is applied to analyzing procedures (quantitative caps, scheduling orders, cost-shifting, sanctions, and proportionality) aimed at curbing discovery abuses. Equilibrium implications are more complex than simple, static intuition would suggest. Shortening discovery may increase costs. A limit on one party may increase the intensity of the other. Cost-sharing and sanctions increase private costs, but their implications depend on which party is targeted. Proportionality is contextual and influences more than one equilibrium channel.