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As officers of the court, attorneys have a sworn duty to act in good faith and uphold the ethical standards of the law. In most cases, an attorney’s obligations to their client, including the protection of confidential information and zealous advocacy, work harmoniously with their higher obligations to the court. In recent years, however, e-discovery has provided a ripe new playing field for dubious tactics that threaten to destabilize the balance.

Undoubtedly, unethical discovery practices existed long before the advent of big data. However, today, the ability to inflict damage is unprecedented. Owing to the sheer volume and ephemeral nature of electronic evidence, litigators have seen the emergence of a new era of opportunity for bad actors to bottle and sell obstructionist tactics. The days of red-ropes and banker boxes have given way to an era where an average corporation’s discoverable universe can dwarf the Library of Congress’s entire printed collection.

While the damage inflicted by withholding evidence can be hard to quantify, the impact of a deliberate over-production or “data dump” is a matter of arithmetic. A “data dump” occurs when a production includes more false positives than positives, thereby magnifying the haystack in which the opposing party must search for the needle, driving up review costs.

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