Highlights of Interesting Participant Answers: Cost

Question 1 (All): Does the shifting environment of discovery from ink-on-paper to digital media advantage or disadvantage plaintiffs?

* Since electronic discovery advantages both parties (I think), there's an advantage to plaintiffs. Plaintiffs are often unable to pay for the resources needed to fight big corporations and their armies of lawyers and paralegals. In the past, they could be "drowned" in paper, left to find the small needles in endless haystacks. Searching electronic data as easily as one can on WestLaw, plaintiffs can find quickly in seconds the "smoking guns" they may never have found in the paper-centric world. Also, plaintiffs' making aggressive and sweeping discovery requests also may (at first blush) disadvantage defendants who have to marshal a lot of resources just to organize and review their electronic data for production, but there are numerous business reasons besides litigation to justify such a process.

* Both. It increases potential access to useful materials, but can vastly increase the costs of "mining" those materials. (The costs, however, are likely to go down over time.)

* Great advantage to the plaintiff, who normally would have precious little to produce while getting the benefit of broad rules on relevancy to raise enormous havoc with the defendants. What is particularly disturbing is that the plaintiff can interfere with normal defendant operations through these discovery burdens, and that is not what the rules of discovery were intended to accomplish. Existing rules allow wide lattitude on discovery. I like the idea of asking the court to allow the parties to work out their own differences and then return to the court if any help is needed. That allows a defendant time to make a personal showing of burden to the plaintiff's attorney and puts the defendant in a much better position to demonstrate the plaintiff's unreasonableness if there needs to be a court fight.

Question 2 (Plaintiffs): Assume that the discovery request is framed in broadest terms to include all forms of electronic data in all forms of media relevant to the plaintiff's claims. Suppose the defendant responds with a motion to limit scope of discovery to active data. The defendant supports the motion with affidavits showing that more than 90% of the material responsive to the discovery request is likely to be in active data, which can be searched at relatively low cost, while only 10% of responsive material is likely to be in the inactive data, which will be exceedingly expensive to search: On the basis of this showing the defendant asks that plaintiffs pay the costs of searching inactive data, if it is to be searched at all. What is your response? What outcome would you predict? Why?

* I think this makes a 2-tier approach desirable: first analyze the active data, the 90 percent. It is possible that searching the material in active use will help more precisely identify relevant material in the inactive 10 percent. The retrieval of this information should not be an occasion for cost shifting. True fishing expeditions in archives are more appropriate candidates for at least conditional cost shifting, with the final placement of costs being dependant on the outcome of the search, or the outcome at trial.

* The plaintiff should bear the cost of searching for frivolous inactive (or even active) material. If the information is important and relevant to the litigation, the defendant must bear the cost. This need not be an overwhelming burden for the court, the final arbiter of "frivolous" or "relevant." For example, a court could require that the attorneys file a Joint Designation of Relevant Documents. The cost of all items on this list would be the borne by the producing party. If the parties could not agree as to whether certain classes of documents are relevant, the court could order the documents to be produced, and impose a "lottery." If a document is ultimately deemed relevant and admissible by the trial court, the defendant pays the cost of production. If not, the plaintiff pays.

Question 2 (Defendants): Would you consider contesting the request for deleted email on the grounds that it should not be discoverable? What about deleted email would take it out of the sphere of discoverable material?

* In the normal course, given the significant cost of attempting to recover deleted e-mail (with guaranteed uncertain result), such material should be off-limits, unless there is a partcularlized showing of relevance and need. In order to avoid game-playing, in those instances where particularlized need might be observed, it would be wise to shift the cost of trying to recover deleted email to the requesting party. From another perspective, email is like conversation. It should be treated as such unless, again, there is a special showing. If an individual, in good faith and without malice, deletes email (as we all do) in the normal course, then that act should be so honored. That it might be recoverable through heroic application of forensic technology makes as much sense as forcing a defendant to piece together shredded documents. There must be limits; otherwise, the downward spiral of the American litigation system will continue unabated..

* Simon Property Group L.P. v. mySimon, Inc. 194 F.R.D. 639, S.D.Ind., 2000 states that deleted docs are discoverable within the scope of Fed.R.Civ.P. 34. (For more on this case, see the Digital Discovery CLE Library under "Process.")

Question 3 (Plaintiffs): Suppose the defendant shows that there is tremendous overlap among backup tapes, and specifically, that looking at quarterly backups will retrieve 90% of the data on all the back-ups. Defendant proposes that at most it should be required to pay the costs of a quarterly review: If plaintiff wants more, plaintiff should pay. What response? What outcome would you predict? Why?

* All things being equal, a statistical sampling may be all that is reasonable and cost-effective under the circumstances. If the plaintiff wants more, then it's not unreasonable for him, her or it to pay for it.

Question 3 (Defendants): Your discovery consultant says that 99% of the responsive data is likely to come from easily searchable active data, but that the last 1% will come from inactive data, for which the searching costs will be extremely high. Would you request limitation to active records, or in the alternative, shifting of the cost of electronic discovery to the plaintiffs for searching inactive records? How would you frame your request? How would you assess your prospects for success?

* I would very much argue for cost-shifting. It is in the forensics that real costs occur. This is a classic cost-burden situation that judges should review in the context of a strict proportionality analysis. Unless one is dealing with a jurist already educated on the unique costs and burdens associated with this type of discovery, it probably will be necessary to submit burden affidavits of IT types to support a protective order or other opposition. In short, I would request limitation to active records and then, upon a showing of particularlized need, access to the inactive data only upon an agreement to shift costs. By and large, I think the prospects for success in this context are significant, assuming the judge is properly informed.