After reviewing Professor Spencer’s three proposals and those of several other authors, some patterns emerge. Based on the two primary systematic problems facing parties in discovery and litigation generally today—an overworked judiciary who may not always understand the problems facing litigants and perverse incentives for parties to accrue costs (usually to force settlement)—the best solutions lie in using the parties’ own incentives to limit the costs of discovery, especially given the nature of E-discovery. For example, Spencer’s second proposal offers so much promise because it encourages parties to unilaterally tailor, and limit their discovery requests, lest they have to later pay for it themselves. That said, some increased judicial
