13.4 Limits on Discovery

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

13.4 LIMITS ON DISCOVERY

13.401 In General. The same objections and privileges applicable to paper documents may be raised for digital discovery. Professionals must first consider the economics of their litigation, exercise self-discipline, and impose their own practical limits. Many of the traditional notions of limitations in discovery have been codified in the Federal Rules and Virginia Rules, and are discussed in paragraph 13.301 above.

13.402 Economic Limits. The practicing attorney should never lose sight of the practicalities and economics of the case. Contemporaneous documents are seldom prepared with an eye to subsequent litigation. Discovery of documents always involves filtering a large volume of potentially relevant information to locate that which is really relevant. This involves costs for collection, processing, review, and production.

The scope of the document request must always be informed by the nature of the litigation. Most cases do not economically justify turning over every rock containing potentially relevant evidence. If the requesting attorney cannot economically justify spending the time and money to look under all of the rocks, he or she should not demand that the adversary deliver them. Professionalism and respect for our legal system require that a requesting lawyer demand production of no more than he or she will actually review. To require an adversary to spend the time and money to produce documents that will not be examined or are only cumulatively relevant is to abuse the system and unnecessarily drive up litigation costs. It is sanctionable.¹⁷⁸

A lawyer propounding discovery requests should always be mindful of the difference between the relevant evidence sought and the irrelevant evidence made available. A search of digital file storage devices is a search of every file stored there, not just a search of files that may have evidence relevant to the subject matter of the litigation. Under certain circumstances, the search can be done, at least in part, electronically. For example, with the right equipment and software, the computer can scan the files for keywords or phrases. The selected documents must then be reviewed. Even in the best of all worlds, a very limited percentage of the documents reviewed will be relevant to the subject matter of the litigation—even fewer will be good candidates for use in depositions, motions, or at trial. The producing party has two choices. It can pay its lawyer to review all files on the storage devices and produce only those responsive to the discovery request, or it can allow the requesting litigant's lawyers to review all files on the devices.

For obvious economic reasons, some responding parties opt for the latter approach, forcing the requesting party to bear the brunt of the review expense. However, this approach also gives the requesting party access to a large amount of potentially private and competitively sensitive materials. Depending on the circumstances, the requesting party may also see privileged materials, most often under a non-waiver agreement.¹⁷⁹ Because of its intrusive nature, some courts have been reluctant to order access to computer systems without a showing that there is a reasonable likelihood that discoverable information can be retrieved and that the responding party's confidential and privileged information will be adequately protected.¹⁸⁰

13.403 Overly Broad and Unduly Burdensome Requests. Virginia Rule 4:9 and Federal Rule 34 do not provide for "roaming" discovery that may result if a party is granted direct access to the opposition's computer system.¹⁸¹ In addition, Virginia Rule 4:1 and Federal Rule 26(c) grant courts the discretion to limit discovery or require the requesting party to pay some or all of the cost. Thus, when the responding party argues that the request will subject it to intrusive, expensive, and burdensome discovery, courts may shift the burden and cost of production from the responding party to the requesting party.¹⁸² Moreover, courts may use the cost-benefit analysis of Rule 26(b)(2) to deny electronic discovery.¹⁸³

13.404 Data Sampling and Cost Shifting. Because of the vast scope of potentially discoverable information, the cost of responding to discovery has become an important issue. This concern has led to the emergence of models for data sampling and cost shifting or sharing, and the codification of cost-shifting principles in Federal Rule 26(c).

When it is uncertain whether data sought from sources otherwise identified as not reasonably accessible may in fact be non-duplicative and relevant, litigants or the court may consider the use of sampling to better understand the nature of the data and its likelihood of relevance. Data sampling is a process whereby a statistically representative portion of the data source or pool of information is reviewed (and restored if need be) to determine if it contains unique, relevant data. Data sampling can help direct discovery processing efforts and significantly reduce discovery costs. Sampled data might reveal that there is little, if any, unique, relevant information on the source, thus saving the party from needless extra expense in its retrieval, review, and production.¹⁸⁴ Sampling may be appropriate in situations where a party has raised the possibility that relevant unique documents exist on a large number of backup tapes, but it is unclear to which periods these tapes relate.

In McPeek v. Ashcroft (McPeek I),¹⁸⁵ the court found that retrieval of specific records from computer backup tapes was not within the ordinary and foreseeable course of business but ordered the restoration of a small sample of the backup tapes to determine whether they contained relevant discoverable information not available from any other source. Later, in McPeek v. Ashcroft (McPeek II),¹⁸⁶ the court held, after ordering the sampling of a large collection of backup tapes, that the resulting data supported further discovery of only one of the tapes. The opinion includes a detailed description of the sampling methods used to reach this conclusion.

When the issue is not simply retrieval but manufacture of computerized data for purposes of discovery, courts may be more inclined to shift the costs to the requesting party.¹⁸⁷ For example, in Rowe Entertainment, Inc. v. William Morris Agency, Inc.,¹⁸⁸ the court fashioned a remedy that allowed cost shifting after review of affidavits by electronic data recovery experts. The court gave the defendants the option to allow the plaintiffs' counsel to review the voluminous emails sought in their "sweeping" requests, select the ones they wanted to use, and send them to the defendants for a privilege review before release to the plaintiffs. The court rejected the argument that because the responding party chose the method of electronic storage, it should therefore bear the cost of production. The court did not agree that the need to retrieve stored electronic data is an ordinary and foreseeable risk. It reasoned that parties retain electronic data because, compared to paper storage, the costs of storage are small and there is no compelling cost reason to discard the data. The court also noted that in this situation data is not stored for retrieval purposes but is simply uploaded in its entirety onto a backup tape for disaster recovery purposes.

In contrast, in Linnen v. A.H. Robins Company,¹⁸⁹ the court refused to shift the cost of production to the requesting party, holding that it would be unfair to permit the company to enjoy the benefits of technology but at the same time use technology to prevent discovery. The court held that the request to produce electronic documents should be treated in the same manner as a request to produce documents from a filing cabinet, and the producing party should bear the expense.¹⁹⁰ Similarly, in United States v. Universal Health Services, Inc.,¹⁹¹ the court denied the Commonwealth's argument that it should be excused from production of ESI due to undue burden or cost, because even though retrieval of the email files would be costly or time consuming, (i) the defendants provided evidence that less expensive options for retrieval existed, and (ii) by not implementing a legal hold in a timely fashion, the Commonwealth negligently allowed certain time frames of email data to be converted to backup tape rather than remain in an accessible form. Interestingly, the court required the defendants to bear the initial cost of this data retrieval, allowing the defendants to file a motion at a later date seeking reimbursement from the Commonwealth.¹⁹²

13.405 Search Methodologies.

A. In General. Courts are becoming more familiar with how parties handle discovery of vast amounts of electronic data, although some more slowly than others. Given that data collections for review can now run into the hundreds of gigabytes or terabytes,¹⁹³ and that collection and review of documents alone in commercial litigation can amount to thirty to forty percent of the total litigation expense,¹⁹⁴ the legal industry is adapting to new ways to cull that data to limit the time spent on it by attorney manual review.¹⁹⁵ One way to limit the vast amount of information that counsel must review before identifying relevant documents is to run keyword searches either before processing documents or at the point of collection to winnow the universe of documents to those most likely to be relevant.¹⁹⁶ Recently, the industry has been using predictive coding, or technology-assisted review, to leverage user input with technology to review a statistically valid sample of a larger population of documents to meet its production obligations. These methods, combined with the use of date filters, duplicate and near-duplicate identifiers, email threading, and conceptual grouping all augment the human review process to prioritize the documents for review. However, while the producing party traditionally is presumed to know the best location...