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Does the Asymmetrical Nature of ESI Discovery Necessitate Cost Shifting?

Posted on September 21st, 2012

Our last blog discussed the eDiscovery interlocutory order in Boeynaems v. LA Fitness, No. 10-2326 (E.D.P.A. August 16, 2012), which mentioned that one of the reasons cost-shifting was appropriate was the asymmetrical nature of ESI productions. While it is true that generally, defense productions are more voluminous than plaintiff ESI production, does this necessitate a cost-shifting analysis based on that fact alone?

The LA Fitness District Court explained that the costs of defense production in class action lawsuits is a significant factor in litigation. The bigger the class, the bigger the scope of production for electronic data discovery.

However, the issue of asymmetrical discovery production for class action lawsuits has been around long before eDiscovery became the norm. In fact, the Court cited a law review article from 1987 that pointed out multiple potential scenarios where the asymmetrical nature of discovery could sometimes resemble “extortion” of the party with the greater burden.

For example, the Court cited IP Venture, Inc. v. Sony Electronics, No. 09-497 (D.Del). In that case, the plaintiff was a small investor group suing Sony over patents that had since been declared invalid. Defendant Sony objected to the sweeping and expensive discovery requests. Due to the asymmetrical nature of the discovery obligations, the Court held that some costs should be imposed onto the plaintiffs. Instead of paying for the costs, the plaintiffs settled the case leading the Court in LA Fitness to surmise that it may have been due to their lack of confidence as to the merits of the case.

Yet the argument that plaintiffs could somehow use burdensome ESI requests as a way to “extort” defendants into settling seems much more likely to happen the other way around, as defendants often attempt to overwhelm plaintiffs with unresponsive discovery as a litigation tactic. The idea behind the ability to pursue relief as a class is to elevate plaintiffs with smaller individual claims and lesser resources to the same level playing field as defendants, who with vastly superior resources could overwhelm a plaintiff pursuing an individual claim.  As is typical in mass torts or catastrophic injury cases, the plaintiff trial attorneys already front many costs of litigation to bring meritorious cases to trial; adding to that burden may keep plaintiffs out of the courthouse altogether.

ILS – Plaintiff Electronic Discovery Experts

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