TPLF Tuesday, Week 5: Discovery and “the resources of the parties”

The “resources of the parties” are important to determining whether discovery is “proportional to the needs of the case” under FRCP 26(b)(1)’s definition of the scope of discovery. But courts and parties cannot understand “the resources of the parties” without knowing that a non-party is funding the litigation. Similarly, when courts consider imposing sanctions under FRCP 37 or allocating costs pursuant to FRCP 26(c)(1)(B), they should know when a non-party is providing substantial resources to a party (and likely influencing litigation decisions).

The only way for courts and parties to know when a party’s resources include funds from a non-party investor is for courts to order disclosure of TPLF contracts—or for the FRCP to require it.