One change in the discovery rules that many people were looking for, and a change supported by the Civil Rules Advisory Committee, didn't happen. That related to cost bearing. In 1998, the Advisory Committee proposed adding the following sentence to Rule 34(b): On motion under Rule 37(a) or Rule 26(c), or on its own motion, the court shall - if appropriate to implement the limitations of Rule 26(b)(2)(i), (ii), or (iii) - limit the discovery or require the party to pay part or all of the reasonable expenses incurred by the responding party.

During 1999, this proposed new language was moved to Rule 26(b)(2), immediately preceding the proportionality considerations of Rule 26(b)(2)(i), (ii), and (iii). The effect was to directly linking the concepts of proportionality and cost-bearing.

There was vigorous debate in the Advisory Committee over this amendment, and that debate centered on the extraordinary costs associated with electronic discovery. The question was, should such discovery be made explicitly dependant on the willingness of the requesting party to pay for that discovery, or should the rules reflect that expense was one factor that a judge could use in deciding whether to require the discovery? It wasn't just the traditional fear of shutting the courtroom door to those not able to pay. There was just as much fear that the language might be used by well-heeled requesters of computer-based discovery to nullify the opposing party's legitimate objections of burden, overbreadth, and intrusion by simply offering to pay the costs, a species of eminent domain.

The proposed amendment was approved by the Advisory Committee by a vote of eight to five. However, it was rejected by the full Judicial Conference and is not included in the amendments that went into effect on December 1.