Editor: Why should the scope of e-discovery be limited? Should it presumptively be limited to information available in the ordinary course of business?
Solomon: The scope of e-discovery should be limited because the broad scope that exists right now combined with the incredible volume of ESI that corporations currently store is resulting in excessive discovery. The broad scope can turn even a simple case into a complex one just by virtue of the e-discovery burden. And it is getting worse because courts are willing more than ever to allow requesting parties to engage in “discovery about discovery” and when you consider that courts are increasingly finding that ESI stored in mobile devices, on social media sites and in other non-traditional sources is fair game.
I believe Fed. R. Civ. P. 26(b)(2)(B) was adopted in part to try to put limits on the scope of e-discovery using accessibility as the dividing line. This rule unfortunately has not been as effective to limit the scope of e-discovery as planned and part of the problem may be that the rule requires the producing party to bear the burden to initially show that the information is inaccessible and then the burden shifts to the requesting party to show good cause for the requested discovery. A presumption limiting the scope of e-discovery to information available in the ordinary course of business would help reduce the burden because both parties would have to make do initially with information in the ordinary course of business without the producing party having to make a showing of inaccessibility. Thereafter, it would be the requesting party’s burden to show that something critical outside the ordinary course is missing and necessary. I have seen model orders that take this phased approach to the e-discovery process, and I think it can be effective in significantly reducing costs.
I do note that limiting the scope of e-discovery in this manner is not enough to reduce the e-discovery burden on corporations. The scope of preservation also needs to be targeted and severely limited, among other things. In many cases the duty to preserve is triggered before the commencement of litigation and certainly before discovery requests are received, and corporations are expected to get into the minds of their adversary at this early stage to consider what the adversary may request in discovery or need to prove their case. The end result is that the fear of the unknown and of sanctions leads corporations to incur great expense to overpreserve information that does not turn out to be relevant or necessary to the matter at hand. Thus, corporations need clear limits on what they must preserve to fulfill their preservation obligations.
Editor: Why should e-discovery costs be borne by the requesting party?
Solomon: E-discovery costs should be borne by the requesting party because it would create an incentive for requesting parties to be more reasonable. The incentive that exists today is for requesting parties to serve discovery requests that they know are burdensome, voluminous and expensive in the hope that producing parties will throw up their hands because of the exorbitant cost of preservation, collection, document review and production, not to mention business interruption, and settle the case. There is no downside to asking for everything because (1) they know that the current state of the law makes cost-shifting very difficult to achieve, and (2) the requesting parties’ clients, in many cases, do not have significant ESI to preserve or produce so they do not worry about the tables being turned. Requiring the requesting party to bear the cost of e-discovery for the stages I discussed above would put the incentive in the right place and require the requesting party to narrowly tailor the request to what they really need and think twice before making burdensome, expensive requests. It would also have another positive impact in reducing the amount of time courts must spend determining whether discovery requests are burdensome. If the requesting party had to bear the costs of e-discovery, it would agree to eliminate or limit burdensome requests and the issue would be resolved without court intervention.
Editor: Why should the preservation obligation be triggered by the commencement of litigation?
Solomon: Moving the preservation trigger to the commencement of litigation would provide certainty and a clear, bright line of when the obligation to preserve begins. Today, the obligation is triggered when litigation is “reasonably anticipated” and figuring that out can be complicated, fact-intensive and reasonable people can disagree after analyzing the same underlying facts. Employment litigation, for example, provides some of the most difficult determinations regarding the duty to preserve. Some courts give weight to the frequency of internal complaints by an employee while others to testimony by coworkers about their personal beliefs about the likelihood of litigation. Corporations are afraid they will be second-guessed in making this extremely fact-intensive determination, which leads them in many cases to err on the side of preserving before they are legally required to do so and thereby overpreserve. Creating a rule that the duty to preserve is triggered at the commencement of litigation would stop the guessing games and the fear of a court using hindsight and allow corporations to have the predictability they need to fulfill their obligations.
Editor: Why should the preservation obligation be limited primarily to information relevant, material and proportional to the claims and defenses with an emphasis on what is necessary to the conduct of the business?[RS1]
Solomon: While there is some authority - The Sedona Conference papers and a few courts - that suggests that proportionality can be considered by a corporation in determining what and how it should preserve once the duty to preserve is triggered, there is conflicting authority where courts have suggested that a prudent producing party should not make that proportionality determination on its own during the preservation process and should wait until it has an opportunity to get to court or to reach agreement with opposing counsel. Because of this inconsistency, there should be an express rule limiting the scope of preservation as discussed above and making proportionality an appropriate consideration (along with other factors such as relevance and materiality) in implementing preservation steps. This would significantly reduce the costs and burden of e-discovery on corporations.
Editor: Why should spoliation sanctions be imposed only where willful conduct was carried out for the purpose of depriving another party of the use of the destroyed evidence and the destruction results in actual prejudice to the other party?
Solomon: Cases should be adjudicated on their merits and be a search for truth. What is happening instead is that some requesting parties are playing a gotcha game with spoliation to exploit the fear of sanctions and drive settlements. Similarly, some requesting parties are making spoliation a sideshow to draw attention away from the merits. The high-profile sanctions award cases that make the rounds on blogs and in industry publications help fuel these practices. Making spoliation sanctions available only for willful conduct that results in actual prejudice would put an end to the gotcha games and the sideshows and put the focus back on the merits of cases. Requesting parties would then focus on obtaining the discovery they need to prove their case rather than in trying to find a hole or preservation lapse to set up a spoliation argument.
Published December 20, 2012.
