E-discovery: Corporate defendants strike back

Tips on how in-house counsel can turn the tables during e-discovery

Because individual plaintiffs often have little electronic data of their own to preserve and produce, they are often able to use e-discovery requests as a weapon to make life miserable for the corporate defendant, who must search, gather, process, review and produce potentially onerous volumes of data. Some plaintiffs successfully count on the corporate defendant to settle these cases, regardless of the merits, because a cost-benefits analysis frequently yields the conclusion that settlement will be cheaper than the costs of responding to e-discovery requests alone.

To be sure, there are cases that should be settled based on this calculus. But there are others that should not and would not be settled if the corporate defendant was armed with the ability to turn the e-discovery tables on the plaintiff. Unfortunately, companies often overlook electronic data that the plaintiff may possess and may not wish to produce, and, in the process, the company foregoes leverage it could have brought to bear on the plaintiff. Although not every case is right for it, counsel should always consider what, if any, electronic information the individual plaintiff may possess, as most plaintiffs do not consider what skeletons they have in their own closets when they go hunting for them in the corporation’s closets. A real case example makes the point.

Many companies and their counsel begin and end their analysis by quantifying the cost of responding to the plaintiff’s e-discovery requests and then deciding that even a mid to high six-figure settlement is cost justified. And while that conclusion may be appropriate, consider the following alternative.

First, image the hard drive using appropriate protocols with the plaintiff’s agreement. Given the plaintiff’s spoliation allegations, he will be hard-pressed not to agree to a protocol-protected image of the hard drive. While the “damage”, if any, has been done by the employer’s pre-imaging searches, the company can show its good faith by immediately imaging the hard drive, making a copy available to the plaintiff and showing it has nothing to hide, thus likely preserving its ability to rebut the spoliation claim.

Contributing Author

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Joseph Fogel

Joseph L. Fogel is a Partner at Freeborn & Peters and co-leads the Litigation Practice Group. His areas of focus include multiple areas of business...

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Contributing Author

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Todd Ohlms

Todd J. Ohlms is a Partner at Freeborn & Peters and co-leads the Litigation Practice Group.  His practice involves advising and representing clients with respect...

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