“It’s not fair.” Admittedly, I’ve uttered these words on numerous occasions, both professionally and personally, and then chastised myself for allowing myself to feel powerless—and for believing that if I say “it’s not fair,” someone will miraculously agree with me and change the outcome. And while all may be fair in love and war, Bill Gates reminds us, generally speaking, that “Life is not fair, get used to it.” Of course this advice is coming from a man worth $66 billion. But wait Bill, Judge Michael Baylson of the Eastern District of Pennsylvania has good news for all of us. If not in life, at least in the law of civil discovery: “Discovery need not be perfect, but discovery must be fair.”
In Vaughn v. LA Fitness Judge Baylson, in a case of first impression, held that costs would be shifted and plaintiffs must pay for additional discovery requested in a pre-class certification discovery dispute. Specifically the court said, in the interest of fairness in the “asymmetrical case,” where “plaintiffs have asked for very extensive discovery, compliance with which will be very expensive” and where “the burden of discovery expense is almost entirely on the defendant,” the Federal Rules of Civil Procedure (FRCP) and certain case law provide the court with the power to allocate the costs of discovery among the parties.