Civil litigation in the United States has a quiet crisis that lawyers discuss freely among themselves and almost never mention to clients until the bill arrives. Discovery, the process of exchanging documents and information before trial, has become so expensive that pursuing or defending a case is often economically impossible for anyone who isn’t a corporation or a wealthy individual. The right to your day in court technically still exists. The price of using it has put it out of reach for most people.
Email and cloud storage broke the cost model
Discovery rules were designed for an era of paper files and limited correspondence. A typical commercial dispute today involves millions of documents, mostly emails, Slack messages, and cloud-stored files, that must be collected, processed, reviewed for relevance and privilege, and produced in specific formats. RAND Corporation studies of e-discovery costs have repeatedly placed the average price tag for mid-sized cases in the hundreds of thousands of dollars, with large cases routinely crossing seven figures before anyone files a motion. The cost is driven by volume rather than complexity. A simple breach of contract claim involving two companies can require reviewing every email those companies’ employees sent over a multi-year period. The marginal cost of sending each of those emails was zero. The marginal cost of reviewing them is enormous.
The settlement pressure this creates
When discovery costs exceed potential recovery, rational parties settle regardless of merit. A plaintiff with a strong claim worth $200,000 cannot afford $400,000 in discovery costs to prove it, so they accept a low-ball settlement or drop the case. A defendant facing a weak claim still pays nuisance value to avoid discovery costs, which incentivizes the filing of weak claims. Both sides know this dynamic, and both factor it into early negotiations. The result is a litigation system that increasingly resolves disputes based on who can afford the process rather than who is right. Federal Judicial Center surveys of judges and litigators have documented this concern for two decades, and proposed reforms to proportionality standards have produced modest improvements at best.
The asymmetry favors institutional repeat players
Insurance companies, large employers, and major contractors have in-house legal departments, document retention policies designed for litigation, and the ability to absorb discovery costs as a routine expense. Their opponents, individuals, small businesses, and one-time plaintiffs, have none of this. The discovery process functions as a war of attrition that the better-resourced party reliably wins, even when the law is on the other side. Empirical studies of employment discrimination cases, for example, have found that plaintiff win rates have declined substantially over the past thirty years, partly because discovery costs filter out all but the strongest claims before trial. The cases that survive are unrepresentative of the underlying disputes.
The takeaway
Reforming discovery is unsexy, technical work, and it doesn’t fit neatly into political narratives. But the cumulative effect of unreformed rules is a civil justice system that increasingly serves only those who can afford to use it. Calling this a luxury good isn’t rhetorical; it’s literal. Until the cost structure changes, the quality of justice an ordinary person can access will keep diverging from the quality the law promises.
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