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.
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.