By Carolyn Southerland, Managing Director, Morae Global
The digitization of our everyday communications has led to an explosion of data. An IBM report from late 2016 said the world is currently creating 2.5 quintillion bytes of data a day. At the time of the report, 90% of the world’s data had been created in the preceding two years.
In practice, this means that eDIscovery requests are getting more and more burdensome, with expenses climbing commensurately with the volume.
But even as eDiscovery has become a regular feature of court cases, clients often don’t have an adequate idea of the scope of the work it entails. Thus smaller companies may find that eDIscovery requests are genuinely an undue burden and larger companies may want to claim that the burden is excessive when courts may view the obligation as a cost of doing business. Clients need to protect themselves by working with eDIscovery experts who can assist with assessing the cost and burden associated with given discovery requests.
What’s changed: Rule 26
Lawyers have long argued that virtually everything is subject to discovery, provided it was “reasonably calculated to lead to the discovery of admissible evidence.” One significant change that lawyers might not be aware of is the late 2015 amendment of Rule 26 of the Federal Rules of Civil Procedure. The amendment highlights language on proportionality and gives more power to judges to determine it. The problem is that judges often have no information on which to determine whether a request is reasonable. Attorneys are often little help in this regard.
Potential risks and benefits of responses to eDIscovery requests
Two recent cases highlight the dangers of taking a passive role in eDIscovery requests and the benefits of handling such requests proactively.
An example of the former took place in September, when U.S. Magistrate Judge Mary M. Rowland granted, in part, a motion to compel discovery in Mann v. Chicago. The case revolved around a secret location where Chicago police took suspects for interrogation. The plaintiff, Atheris Mann, sued the city arguing that Chicago police abused suspects in this “off the books” detention center. Both parties agreed that eDIscovery should include the Mayor’s Office, but reached an impasse about which employees’ information should be searched.
The City argued, among other things, that the burden of searching the email of nine additional custodians employed in the Mayor’s office was unwarranted, but did not come forward with any specifics “or even a rough estimate about the burden.” That led the judge to grant the motion to compel, in part, identifying five of the nine custodians for search, and denying the motion to compel as to four employees due to their short tenure in the office or time in their particular positions. The court found the search to be proportional to the needs of the case.
A counter example is found in 2011’s U.S. v. Halliburton a qui tam action regarding KBR’s provision of support services to the military in Iraq.
After extensive production that involved searching hundreds of custodians’ data for particular reports, relator requested additional searches of custodians who were copied on certain reports that were previously produced by Halliburton. Halliburton objected, arguing that the cost and burden on the company were excessive. Halliburton supported its burden argument by providing a declaration outlining the cost and burden associated with the search, in what the judge described as “excruciating, but highly educational and useful, detail.”
Citing the court’s obligation to balance utility against cost, and the $650,000 in discovery costs (without attorney’s fees) already incurred by Halliburton, the court found that the additional discovery was not justified. A detailed description of the scope of work and the cost carried the day.
The urgent need for eDIscovery expertise
As both cases illustrate, it behooves parties to provide an accurate representation of the costs and work involved in complying with an eDIscovery request. Many attorneys struggle with the technical side of eDIscovery processes and have difficulty gathering the information necessary to make a convincing cost and burden argument.
That’s why these days, expertise in eDIscovery is a prized asset. If your team lacks such acumen, look to industry experts to provide the skills to help build a defensible position on cost and burden in “excruciating, but highly educational, and useful, detail.” Amid the digital transformation currently occurring in the legal industry, no legal team is complete without such expertise.
As the sources of data sought in eDIscovery and the costs associated continue to grow exponentially, now is the time to seek it out.