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“E-Discovery: Be careful what you ask for”

Inside Counsel By Steven V. Hunter, Melissa E. Manning

Most of you know the story: either the plaintiff wants everything under the sun from the defendant as part of discovery but has no documents of its own to produce, or two big companies hit each other with unreasonable discovery requests to make the other side settle an otherwise meritorious case.

To address both opportunities for abuse, two new cases put out the message, “If you make unreasonable demands, you are going to have to pay for it.”

In Lubber, Inc. v. Optari LLC, No. 3:11-0042, 2012 WL 899631, at *1 (M.D. TN March 15, 2012), the defendants filed a motion asking the judge to either limit the relevant timeframe for e-discovery or require the plaintiff to pay for all of the defendants’ costs in connection with such discovery. Magistrate Judge Joe B. Brown agreed with the defendants that when a party has to bear a part of the cost of producing what they request, the amount of material requested drops considerably:

When a party has to contemplate whether the last possible bit of information will cost them more than it is worth, they quit asking for items of marginal relevance. As long as requesting the last bit of information costs them nothing, they have little, if any, incentive not to request it. Even if they choose never to look at it, they have put the opposing party to the cost of production. In some cases discovery becomes a tool with which to bludgeon the other side into submission.

Id. at *2. Thus, using the authority granted to him by Federal Rule of Civil Procedure 26, the magistrate ordered each side to bear half the expenses of the materials not already produced. He also ordered the plaintiff to post a $10,000 bond, prior to the defendants producing the requested documents, to protect the defendants if they were ultimately successful on the merits and entitled to costs.

Similarly, in Cannata v. Wyndham Worldwide Corporation, 2:10-cv-00068-PMP-VCF, 2012 U.S. Dist. LEXIS 20625 (D. Nev. Feb. 17, 2012) Magistrate Judge Cam Ferenbach reined in e-discovery requests that were quickly spiraling out of control by ordering cost-shifting for unreasonable requests.

The court found that as long as the final combined set of search terms and custodians or data storage sites did not exceed 40, the plaintiffs would not be required to reimburse the defendants. If, however, the combined total exceeded 40, for each extra search term or site (up to 50) the plaintiffs would have to reimburse the defendants for 5 percent of their e-discovery costs, from the date of the order through the end of discovery, up to 50 percent.

While these cases provide ammunition to bring a motion for cost-shifting for parties who are on the receiving end of overbroad document requests, they also place responsibility on corporate counsel to ensure that it narrowly tailors the discovery being served on its behalf. Otherwise, it could be you on the other side of that cost-shifting motion.

Originally published in Inside Counsel, June 12, 2012

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