Can Simple Mechanism Design Results be Used to Implement the Proportionality Standard in Discovery?

Authors

Jonah B. Gelbach, University of Pennsylvania Carey Law SchoolFollow

Document Type

Article

Publication Date

9-7-2015

Abstract

I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.

Keywords

Civil litigation, courts, discovery, pre-trial, Federal Rule of Civil Procedure 26, information, Coase theorem, efficiency, mechanism design, auction theory, transaction costs, pre-discovery settlement, social norms, Nirvana mechanism

Publication Title

Journal of Institutional and Theoretical Economics

Publication Citation

Journal of Institutional and Theoretical Economics, forthcoming 2016.

Repository Citation

Gelbach, Jonah B., "Can Simple Mechanism Design Results be Used to Implement the Proportionality Standard in Discovery?" (2015). All Faculty Scholarship. 1617.
https://scholarship.law.upenn.edu/faculty_scholarship/1617