We do know, however, that the collateral proceedings required to obtain a judicial determination on a technical matter can be substantial. In one recent case, a judge devoted two full days of hearings to a dispute over search methodology, at the end of which she encouraged the parties to reach agreement, which they did (after numerous additional conferences with the court). Kleen Products LLC v. Packaging Corp. of America, No. 10 C 5711, 2012 WL 4498465, at *5 (N.D. Ill. Sept. 28, 2012).
That the parties were required to devote substantial resources to this dispute is not surprising. The judge had to be educated about the technologies at issue, and courts rightly demand expert testimony in such cases rather than relying upon the representations of counsel. Compare DaSilva Moore, 2012 WL 607412, at *2 (technology-assisted review process requires validation but is not subject to Daubert standard) with O'Keefe, 537 F. Supp. 2d at 24 (evidence challenging search terms required to meet standard of Fed. R. Evid. 702).
> Follow the Money. These are not the only tools available to a judge short of issuing a formal order. While judges who have intervened most actively in discovery disputes have adopted what might be called the command model, the better approach is to emulate the market economy and shift discovery costs to the requesting party in appropriate circumstances.
This has both direct and indirect benefits. The direct benefits are obvious: the responsibility for evaluating whether the benefit of some particular discovery is worth the cost is placed on the party seeking it. That way, the requesting party is no longer free to promulgate sweeping demands, subject only to a court's often arbitrary assessment of whether the discovery sought is proportional under Fed. R. Civ. P. Rule 26(b)(2)(C).
The indirect value of cost-shifting is at least as significant. As courts demonstrate a greater willingness to shift costs, two things happen. First, parties discuss cost-sharing among themselves, recognizing that an agreement minimizes the risk of an adverse court decision on cost allocation. Second, when a party realizes that its adversary may seek to have costs shifted, it is more likely to consider the proportionality of its discovery demands at the outset, as well as to agree to strategies like sampling that will reduce the costs.
Cost-shifting is far from a panacea. It is certainly not available in all cases, since the Supreme Court has observed that "[u]nder the discovery rules, the presumption is that the responding party must bear the expense of complying with discovery requests[.]" Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). Furthermore, cost-shifting cannot become an instrument for denying relatively impecunious parties access to the courts. Nevertheless, it is an approach better suited to the problems presented by e-discovery than judicial fiat.
Footnotes
1. See, e.g., Scott A. Moss, “Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics of Discovery Timing In a Digital Age,” 58 Duke L.J. 889, 892-96 (2009); John H. Beisner, “Discovering a Better Way: The Need for Effective Civil Litigation Reform,” 60 Duke L.J. 547, 564-70 (2010).
2. Gideon Mark, “Federal Discovery Stays,” 45 U. Mich. J. L. Ref. 405, 4-5-07 (2012).
3. See Jason R. Baron, “Law in the Age of Exabytes: Some Further Thoughts on Information Inflation and Current Issues in E-Discovery Search,” 17 Rich. J. Law & Tech. 9, 14-19 (2011) (describing spectrum of judicial activism in search protocols).
4. John S. Beckerman, “Confronting Civil Discovery’s Fatal Flaws,” 84 Minn. L. Rev. 505, 513 (2000) (“At the dawning of the age of litigation enlightenment in the federal courts in 1938, with the advent of the newly crafted Federal Rules of Civil Procedure, discovery in civil litigation was intended to be an essentially cooperative, self-regulating process for which the parties would take responsibility, with little judicial intervention required.”); Mark S. Cady, “Curbing Litigation Abuse and Misuse: A Judicial Approach,” 36 Drake L. Rev. 483, 514 (1987).
5. Occasionally, of course, the shortcomings of a suggested keyword search are so obvious that even a judge can recognize them. See, e.g., William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 135-36 (S.D.N.Y. 2009) (observing that search of construction manager’s documents for words “budget,” “delay,” and “change order” would be overinclusive).
James C. Francis IV is a United States Magistrate Judge for the Southern District of New York, based in Manhattan. Email: James_C_Francis@nysd.uscourts.gov.
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