Private Law Theory

ABSTRACT
This paper develops a model of civil discovery as strategic search. Plaintiff and defendant choose discovery intensities that determine the stochastic arrival of favorable evidence over a finite discovery period. Search improves a party’s expected litigation position but also imposes burdens on the opposing side. The model provides a framework for analyzing how civil-procedure rules affect equilibrium discovery behavior and cost. Numerical caps, scheduling orders, cost-shifting, sanctions, and proportionality operate through different channels and are not economically interchangeable. A central implication is that shortening discovery does not necessarily reduce litigation costs, because parties may respond by intensifying search over the remaining interval.

Grenadier, Brian and Grenadier, Steven R, Discovery as Strategic Search: A Theory of Litigation Burden and Procedure (June 24, 2026).