You’re Gonna Have to Do Your Own Work
April 22, 2010Just because e-discovery is involved does not mean we can disregard the rules applied to traditional discovery. While we must adapt the way we approach discovery because of advancing technology and the decline of the paper-based world, we must not forget that the spirit behind the rules of discovery apply to all discovery, including e-discovery.
In High Voltage, the plaintiff filed a motion to compel the defendant to search for alternative sources beyond the initial production of documents for the selection of the VAULT mark. This would involve having the defendant review an additional 1.5 million pages of documents (17 gigabytes) beyond the 1.7 million pages already produced to the plaintiff.
Predictably, the defendant was unwilling to shoulder the burden of reviewing the additional documents, as defendant reasonably believed it would not provide any new discovery that had not already been provided to the plaintiff. However, the defendant was more than willing to allow the plaintiff to review the additional source of information by allowing the plaintiff to search through the additional sources for documents relating to the selection of the VAULT mark.
The court, citing Rule 26 of the Federal Rules of Civil Procedure, denied plaintiff’s request to compel the additional documents, finding that under Rule 26, plaintiff’s additional request was unreasonably duplicative and the additional material requested likely had already been produced to the plaintiff. The court also found that the defendant made an unrebutted showing that the burden or expense of plaintiff’s proposed discovery outweighed its likely benefit.
Thus, if the defendant can show the court that it acted in good faith and complied with reasonable discovery requests, a motion to compel additional documents would be denied unless the benefits of additional discovery will outweigh the burden/expense. Even though the court held against the plaintiffs, it still required the defendant to once again offer the plaintiff an opportunity to search through those additional documents at defendant’s place of business. Plaintiffs would not be allowed unreasonably burden the defendant with additional document requests simply by making numerous requests for documents that may have already been provided. If the Plaintiffs were to insist on the additional documents, they would have to do the work themselves and bare the costs.
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Tagged as: Accessibility, Consent, Cost Sharing & Shifting, Discoverability, Good Faith, Procedure, Production of Data.
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It seems to me that generally speaking, if you want electronically stored information, you can get it IF you’re willing to shell out the effort and money necessary to do so.
I completely agree with this view that courts have taken. It’s usually pretty costly to get information like this, and if it weren’t for this general rule, parties could wind up trying to force an undue burden and cost upon their adversaries as a means of strategy and forcing a settlement. Hopefully judges keep issuing opinions such as this one so we can prevent such a scenario.
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eDiscoverista Reply:
April 22nd, 2010 at 10:05 AM
@Francis M. Giantomasi, Agreed! Local and federal rule amendments have recently spotlighted e-discovery issues in an attempt to make discovery more accessible and standardized. Rulings like this seem to work against those efforts by discouraging e-discovery. Is there a better alternative?
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Matthew Mann Reply:
April 25th, 2010 at 9:39 AM
@eDiscoverista, Do rulings like this really discourage e-discovery? It seems that this ruling is in line with rulings on motions to compel production of additional traditional paper discovery. Discovery is supposed to be an exchange of information - not a mechanism to be used maliciously.
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Great post - we see cases all of the time where clients are backed in to a corner forced to quickly convert and provide large volumes of paper documents.
Many successful companies mitigate the likelihood of essentially redundant documents through efficient document management and a regimented document retention and tracking plan that forces users to comply with corporate policies.
As producing large volumes of documents becomes simpler, the burden will shift from the defendant to the plaintiff.
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