This is the fifth 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, third and fourth articles provided strategies for avoiding or controlling discovery and document production.
The focus of this series has been on how Goliath-sized defendants can turn their size from a weakness into a strength in asymmetrical litigation. This article considers such litigation from the perspective of the plaintiff and ways a defendant can manage the litigation by managing the plaintiff and discovery disputes.
A Goliath-sized defendant produced more than 2 million pages of documents after sending several letters to its David-sized adversary in an unsuccessful attempt to try and confirm the scope of documents that were being requested (as suggested in our previous article). Nearly a year after the defendant completed its production and near the end of fact discovery, with expert discovery and dispositive motion practice on the horizon and the case faring poorly for the smaller-sized plaintiff, the plaintiff complained that defendant’s production constituted a “document dump.” The plaintiff based this charge on its uncovering a handful of emails, among the 100,000 or so produced, that were irrelevant to any issue in the case. Plaintiff admitted it had only looked at a small portion of the production, yet it demanded that defendant “redo” its entire production, including the email and nonemail portions. What should a defendant do in this situation? Fight the frivolous demand? Capitulate and pay to revise the whole production? We suggest an in-between approach—give in to superficially reasonable requests to remove them as distractions, but turn the tables on the plaintiff when they push too far.
The Goliath-sized defendant, desiring to take the email production issue off the table and focus on the merits of the case, offered to re-review the email portion of the production (but not the rest of the production which had been manually collected). Plaintiff, as expected, brought the alleged discovery violation to the court’s attention anyway, asking the court to sanction the defendant and order it to redo its entire production. After having unilaterally re-reviewed the email portion of the defendant’s production and reproduced a subset of the documents (without plaintiff’s agreement that this would resolve the dispute), defendant opposed the motion.