Does E-Discovery Violate Due Process? Or is it Much Ado About Nothing?

By June 27, 2013

By Steve I. Silverman
Recently I read a series of articles addressing the question of whether the e-discovery process violates a defendant’s due process rights because it forces the defendant to part with its property (in this case, money) without due process of law.  The rationale for this argument is that because e-discovery costs can be significant and generally the producing party must bear the costs, defendants are being deprived of their money simply by being named in a lawsuit, and without due process – the opportunity to be heard before being deprived of a right.  This issue tends to be most prevalent in federal courts where the e-discovery process is being evaluated, questioned, and modified by opinions issued  on what seems almost like a daily  basis.
As a general rule, the producing party must bear the cost of producing its discovery.  As electronic discovery becomes the norm in many cases, compliance may become extremely expensive in instances, for example, where the discovery sought exists only on backup tapes, which require intervention from IT specialists to retrieve.  In fact, plaintiffs may use the discovery process to pressure a defendant to settle the case simply to avoid the cost of compliance with discovery.   While there is the opportunity for abuse in the discovery process, I disagree that a defendant is without due process protections.

Through the use of motion practice, a defendant can seek court intervention and protection.
In the well-known electronic discovery case, Zubulake v. Warburg, LLC, Judge Shira Scheindlin set forth a seven-factor test to determine whether cost-shifting is appropriate:

  1. The extent to which the request is specifically tailored to discover relevant information;
  2. The availability of such information from other sources;
  3. The total cost of production, compared to the amount in controversy;
  4. The total cost of production, compared to the resources available to each party;
  5. The relative ability of each party to control costs and its incentive to do so;
  6. The importance of the issues at stake in the litigation; and
  7. The relative benefits to the parties of obtaining the information.

However, in Zubulake, the court did not address the cost-shifting issue until after production, ordering the defendant to bear the initial cost because there were allegations of destruction of evidence by the defendant.  The test for cost-shifting set forth in Zubulake is similar, but not identical, to the factors set forth in the comments to Federal Rule 26(b)(2):

  1. The specificity of the discovery request;
  2. The failure to produce relevant information that seems likely to have existed but is no  longer available on more easily accessed sources;
  3. The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources;
  4. Predictions as to the importance and usefulness of the further information;
  5. The importance of the issues at stake in the litigation; and
  6. The parties’ resources.

The test set forth in the Federal Rules seems to permit the court to delve a bit deeper into the relevance of the information sought.
Attorneys who are litigating a matter in federal court (or in state courts that have cost-shifting discovery provisions) that involves extensive, inaccessible or difficult-to-access electronic discovery should consider these issues when handling discovery requests, and address the factors at the outset in case management or pretrial conferences, and certainly at the beginning of any anticipated discovery dispute. Through motion practice lawyers can often address electronic discovery costs by negotiation, and if necessary, by presenting cost-shifting factors to the court before large amounts of time and money are spent battling about the issue.  Oftentimes these issues are presented after the court has already ruled on the issue of entitlement without having the benefit of understanding the true impact of the discovery sought on the overall outcome of the case.  Alerting the court to issues of relevance, accessibility and the ability to obtain the information by easier means can save the client substantial sums of money in both electronic discovery costs and legal fees.