This is the fourth article in a series about managing asymmetrical litigation. The first article described these David versus Goliath situations and some of the unique issues that they present. The second and third articles provided strategies for avoiding or managing discovery.
While the best way to minimize the expense and disruption of discovery is to avoid it entirely or to limit its scope at the outset, full blown discovery is often unavoidable in asymmetrical litigation. Document production in particular is an area where small plaintiffs, who often have only a few documents to produce and employees to be deposed, have an advantage. In contrast, Goliath-sized defendants can have staggering volumes of documents that are potentially subject to discovery and the expense of reviewing and producing those documents can dominate the cost of defense and create a strong incentive to take a nuisance value settlement. This article presents strategies for getting through the document production gauntlet as quickly and efficiently as possible. In short, it is important that Goliath-sized defendants invest time upfront to minimize the scope (and, therefore, cost) of document production and try to avoid or defuse non-substantive discovery disputes.
The old paradigm for document production was to back a truck up at the client’s warehouse, grab boxes and boxes of documents that may or may not be relevant, pay for a room full of attorneys to spend a few months looking through the documents and then produce a responsive set to the plaintiff. While this approach involves minimal strategic planning or involvement from the client, it has several problems.
- As document vendors charge by the page and attorneys charge by the hour, it can be prohibitively expensive to process such a large volume of documents.
- Like Goldilocks searching for a bed that is neither too hard nor too soft, crafty David-sized plaintiffs have learned that production can be attacked for being an over-inclusive document dump, just as easily as for being too thin. Such plaintiffs may also conclude that it is easier and cheaper to criticize a large document production as a “dump” than it is to actually review the documents. Defending against such charges can be expensive and risks casting your company in a bad light to the court.
- An unorganized and bloated production makes it harder and more costly for defense counsel to locate the most relevant and helpful documents.
For these reasons, a “quality in-quality out” approach to document production is the preferred approach in any case, but particularly in the asymmetrical litigation context. Instead of just forwarding document requests to the client and collecting everything, attorneys are better served working with their clients to define a specific list of the categories of documents that should be produced and how to best find them. Care should be taken to code and log documents as they are ingested, identifying the responsive topics, custodian and source. Corporate counsel should carefully instruct employees as to which documents should be collected and, equally important, to screen out irrelevant documents. Tranches of documents should be spot checked before they are ingested into the main production set, and sent back for further culling or organizing by their custodian if the quality seems low.
While this thoughtful, carefully managed document collection requires an investment of time from both the client and their counsel, the investment will be amply repaid in the cost savings from processing and reviewing a much smaller universe of documents. Moreover, by carefully documenting how and why tranches of documents were selected for inclusion in the production and where those documents are located in the production, the Goliath-sized parties will be able to more easily defend against charges of over or under-inclusion. For example, a charge that you have failed to produce certain technical documents can be easily rebutted with a responsive letter providing exemplary ranges of responsive documents.
To further take the wind out of the sails of any trumped-up discovery disputes, the Goliath-sized defendant will be well served to make every effort to negotiate with its smaller-sized adversary on the scope of the documents that should and should not be included in the production (this is beyond the higher level case management conference report negotiations discussed in Article III). These negotiations should be meticulously documented in letters exchanged with the plaintiff that evidence the company’s good faith. This record will also make it more difficult for the plaintiff to complain that a defendant’s production is a dump by pointing to five hundred thousand pages of marginally relevant invoices, when the defendant sent plaintiff a letter attaching a sample invoice and asking for guidance as to if it should be produced.
When the plaintiff takes an unreasonable approach to production, a defendant should proactively seek relief from the court before producing documents. The requested relief would likely include asking the court to shift some of the cost to the plaintiff, which is the small plaintiff’s worst nightmare.
A pragmatic approach to non-substantive discovery disputes will also serve the Goliath-sized defendant well. While it may be tempting to battle the plaintiff on minor issues, it is frequently more cost-effective and a better case strategy to simply give the plaintiff the additional discovery they seek, even if it is only marginally relevant. We will talk more about this pragmatic approach in the next article in this series.
Finally, emerging technologies and offerings have made it possible to process and review documents in a more cost-effective manner. Defense counsel should be seeking competitive bidding for major document projects, and defendants should consider options for overseas or machine review of documents, which can cost a fraction of the army of junior associates approach.
With these strategies, the Goliath-sized defendant can focus its resources on substantive resolution and present its CEO with a litigation budget that will not lead to an automatic nuisance value settlement.