Be Careful What You Ask For: Two New Cases Seek to Limit Burdensome E-Discovery Requests

http://ow.ly/bUtS0

An article by Steven Hunter posted on the E-Discovery Bytes website of the law firm Quarles & Brady.

This article discusses two recent cases where objections were levied against eDiscovery requests that opposing counsel claimed to be overly burdensome.

The first case discussed is Lubber, Inc. v. Optari LLC, No. 3:11-0042, 2012 WL 899631, at *1 (M.D. TN March 15, 2012), in which the defendant sought to compel the plaintiff to pay for the costs associated with their eDiscovery requests.  The article quotes the Judge as saying, "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."

The article states that the judge required plaintiff to pay 1/2 of the expenses for the eDiscovery responses, relying on Federal Civil Procedure Rule 26, for data that had yet to be produced, and also required the plaintiff to post a $10,000 bond in the event the defendant prevailed on the merits, and sought costs against the plaintiff.

The second case discussed was Cannata v. Wyndham Worldwide Corporation, 2:10-cv-00068-PMP-VCF, 2012 U.S. Dist. LEXIS 20625 (D. Nev. Feb. 17, 2012), in which the court limited the plaintiff's number of search terms and custodians to 40, and any requests beyond that the plaintiff would have to pay a percentage of the defendant's eDiscovery costs.

The author writes, " 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."