Proposed discovery amendments could make cases more challenging for plaintiffs

While rules are designed to reduce cost for defendants, they could make critical information harder to recover

Plaintiffs bringing cases against large corporations already have what many would consider an uphill battle. Generally bereft of the kind of spending power the corporate defendant has, plaintiffs rely on current discovery laws that require extensive surrender of information to build a case. However, with advent of digital information storage, the discovery process has ballooned in cost.

While new proposals to civil court procedure may help control costs for defendants, they could also result in more challenges for plaintiffs trying to exact justice from their deep-pocketed opponents.

The rules, which were proposed in June of 2013 by an advisory committee, correspond to a number of provisions surrounding the discovery process. They would limit the number of interrogatories permitted to 15, set a sanctions standard for e-discovery violations and emphasize the amount of discovery activity generated by either side.

The proposed rules are designed to to prevent a minority of cases in which “discovery runs out of proportion in a worrisome number of cases, particularly those that are complex, involve high stakes, and generate particularly contentious adversary behavior.”

The committee has suggested that sanctions should only be imposed in situations where plaintiffs were able to prove that information was removed or deleted intentionally, as a direct result of litigation. They argue that the responsibility of curating large troves of electronic data is cumbersome and expensive for defendants, many of whom create and store terabytes of information on a daily basis.

As plaintiffs have pointed out, having a limited number of interrogatories, in conjunction with softened sanctions against spoliation, makes it much more difficult for them to build a case. Since plaintiffs often do not have a full grasp of defendant’s data storage methods at the onset of the case, having the ability to request less information makes it more difficult for them to get what they need to make a case.  

While the rules are not expected to go into effect until February, they currently sound like a win for the budgets of corporations and a loss for legitimate cases brought by plaintiffs.


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Executive Editor

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Chris DiMarco

Chris DiMarco, Executive Editor of InsideCounsel magazine, has a background in multimedia production with previous involvement in projects in which he developed and created content...

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