For many litigators, it’s easy to think of discovery in civil litigation as a burden. That may partly be because that’s all lawyers hear about from the self-styled eDiscovery “experts.” In our industry, there seems to be an endless stream of commentary about the ways exploding volumes of electronic evidence is crushing the legal system.
But too often we forget the purpose of discovery – to obtain facts and information that will reveal the truth in a matter.
Without getting too lofty, let’s remember that discovery is about justice. Unfortunately, I have to wonder if litigators, eDiscovery consultants, and judges don’t spend too much time getting caught up in considerations like what constitutes a burden in discovery. Too often, the only consideration is around ways to reduce discovery and make it more proportional.
Does eDiscovery have a bias?
As a legal journalist for more than a decade, I found it was easy to develop a defense-side bias. In part, that’s because defense attorneys are usually better-funded and there seem to be more of them at industry conferences and sitting on panel discussions.
Oddly, I found plaintiff’s attorneys to be more defensive (no pun intended) about their role in litigation. But that means we hear most often (and most loudly) from those who are intent on reducing the amount of discovery in a matter, not those who are requesting it.
Recently, I came across interesting piece called eDiscovery Decreased Plaintiff’s Burden on the invaluable Ellblog. In the matter W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007), the court considered the standard series of motions to quash discovery due to the cost and burden of producing the potential evidence.
The motions were denied. Although the electronic data sought was not “reasonably accessible” within the discovery rules, the judge ruled the plaintiffs had established “good cause” for requesting the information.
What is good cause in civil litigation?
While the cost of eDiscovery can be crushing, it is important to remember the good cause behind a discovery request. This obviously should be the first consideration in any matter, but in our experience, this rule often gets obscured.
The balance ought to always tilt towards more discovery, not less. In this case, the court pointed to the Fed.R.Civ.P. 26 (Advisory Committee’s note, to 2006 Amendment), highlighting the balancing test to be considered:
(1) the specificity of the discovery request
(2) the quantity of information available from other and more easily accessed sources
(3) if information is missing, is it available on more easily accessed sources
(4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources
(5) predictions as to the importance and usefulness of the further information
(6) the importance of the issues at stake in the litigation
(7) the parties’ resources
While most of these tests are related to practical concerns about the availability of information, I believe special weight always must be given to number 6, the importance of the issues at stake.
eDiscovery should be self-executing. Parties should be able to negotiate these issues themselves. But if one party is moving to shut down the process, judges need to intervene in the interest of justice.
As the ruling notes, “the rules should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists.”
That means no game playing. No withholding information because it might be hard to find. And no falsely crying hardship in order to limit discovery. Obviously, eDiscovery cannot become so expensive as to make litigation impossible. But let’s remember that getting to the truth should still our primary goal in civil litigation.