Chapter § 2.08 Discovery: Advantages and Pitfalls

• Jurisdiction: United States
• Publication year: 2020

§ 2.08 Discovery: Advantages and Pitfalls

The discovery phase allows plaintiffs to build their cases by collecting evidence required to prove their case and prevail at trial, to support their trial theories and themes, and to gain information about the defense’s theories. It also allows the parties to test the fact and expert witnesses and the trial theme. Cases can be won or lost in discovery.

The 2015 amendments to the Federal Rules included an amendment to Rule 26 that narrowed the scope of discovery in federal civil cases. Rule 26(b)(1) now states:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. ⁸³

Notably, the amendment “restore[d] the proportionality factors to their original place in defining the scope of discovery.”⁸⁴ What’s more, the phrase “reasonably calculated to lead to the discovery of admissible evidence” was deleted because it had been used incorrectly to expand the scope of discovery.⁸⁵ But Rule 26(b)(1) still allows for “[d]iscovery of nonprivileged information not admissible in evidence . . . so long as it is otherwise within the scope of discovery.”⁸⁶

Despite the narrower scope of discovery under Rule 26, the scope of discovery in federal courts can still be expansive. But plaintiffs face risks when requesting overly broad discovery. As discussed further below, under the 2015 amendments, Rule 26(c) now contains explicit language providing that the court may shift costs for responding to discovery requests. In fact, relying on this rule, “[s]everal courts have ordered parties to share expenses related to attorney privilege or responsiveness reviews.”⁸⁷ A broad discovery request can result in an old-fashioned document dump by the defendant of irrelevant documents and information;⁸⁸ organizing and reviewing these documents could significantly increase costs for the plaintiff.

On the other hand, aggressively pursuing discovery from the defendant could put the defendant in a bind. Plaintiffs who vigorously pursue enforcement of defendants’ discovery obligations can obtain favorable inferences in trial if the defendant fails to satisfy its discovery obligations. In one instance, a court granted sanctions against defendants that failed to produce certain documents and failed to preserve and thoroughly search emails during discovery.⁸⁹ After the plaintiffs continually brought the defendants’ deficiencies to the court’s attention, the court ordered that certain facts be deemed admitted by defendants, that certain evidence be precluded, that defendant’s privilege assertions be struck from its privilege logs, and that certain witnesses be struck, in addition to monetary sanctions.⁹⁰

[1] The Rule 26(f) Conference

Under Rule 26, the parties must meet and confer to attempt to agree on a plan for discovery.⁹¹ This conference should be the first step in the plaintiff’s efforts to impose suitable limits on scope of discovery and the timing for production. The plan developed from the Rule 26(f) conference provides the parties the first chance to build credibility with the court. Therefore, reasonableness and common sense should govern the plaintiff’s approach in conferring on the details of discovery. For instance, a court would likely view as unreasonable a plaintiff’s request to cut off discovery after two months in a complex commercial case, the same as it would a defendant’s suggestion that the discovery cut-off should be three years later. A smart plaintiff will work with the defendant to present a discovery plan that will exert pressure, but within the bounds of reasonableness.

As part of the conference, the parties may agree to limit the length of depositions, the number of interrogatories or document requests, and the number of experts. Additionally, the parties can address whether the case warrants hiring a special master for complicated discovery disputes. A plaintiff should determine in advance whether it is more advantageous to bifurcate the fact discovery from the expert discovery. Another, often overlooked, issue is the timing of expert reports. Typically, the plaintiff will submit its first report, with the defendant’s rebuttal to follow. In complex cases, in which the multiple parties are bearing the burden of proof on separate issues, consideration should be given to simultaneous exchange of expert reports on which the party bears the burden. The Rule 26 conference also requires parties to discuss the implications of electronic discovery.⁹²

Therefore, a well-prepared and strategic plaintiff considers the overall discovery plan and ensures the plan is aimed at accomplishing its litigation objectives. Moreover, the plaintiff will ensure that the Rule 26(f) conference furthers those objectives—often in the presence of an unwitting defendant.

[2] Electronic Discovery⁹³

A plaintiff should carefully craft discovery requests for electronic information to limit production to relevant data. This prevents excess costs by avoiding document review costs for millions of irrelevant emails and data.⁹⁴ Plus, the plaintiff must consider the client’s out-of-pocket expenses, whether outside vendors are necessary, and the disruption to the client’s daily business. A frequent issue with electronic discovery today is not whether or not data is discoverable, but which party will bear the associated costs.⁹⁵ While Zubulake v. UBS Warburg LLC, the seminal case on cost-shifting in electronic discovery disputes, focused on the shifting of expenses arising from compelling production of “inaccessible” electronic data,⁹⁶ courts have, over the years, looked beyond accessibility to determine whether to shift discovery costs. In FDIC v. Brudnicki, the court noted that, though “Zubulake was focusing upon the issue of cost shifting when dealing with inaccessible [electronically stored information], and other courts have required a showing of inaccessibility for cost shifting, other courts have held that Rule 26(c) permits cost shifting as part of enforcing proportionality limits.”⁹⁷

Reflecting this development, the 2015 amendment to Rule 26 expressly recognized the courts’...