Discovery Abuse

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Abuse of the discovery process in litigation can delay justice and add to the costs of litigation for all parties involved.

Issuing overly broad or excessive discovery requests is a tactic frequently used in litigation to wear down an adversary -– requiring extensive research and document production to respond to discovery, taking needed resources away from other activities, increasing legal costs, and extending the length of the litigation.

In some court jurisdictions notorious for favoring plaintiffs, discovery requests may be handled inequitably so that defendants are required to comply with exhaustive plaintiff discovery inquiries while at the same time defendants may not be allowed to obtain even basic information about the individuals filing suit against them.

For contingency fee lawyers, unfair abuse of the discovery process can have multiple advantages: (1) as a trial is delayed and costs rise due to an extensive discovery burden placed on defendants, the defendant’s motivation to settle the case for a large sum increases; (2) broad requests for information that is at best only tangentially related to the litigation from a company’s files can lead company officials to settle rather than potentially release sensitive company information; and (3) a pervasive fishing expedition through a defendant’s files could turn up information which is ancillary to the current trial but which might facilitate further profitable litigation against the company.

In addition, some contingency fee lawyers may seek to take advantage of the discovery process to bolster their class action lawsuits. Some of these lawyers have been said to coach their clients about how to respond to depositions in order to help ensure that they qualify as a party to a class action lawsuit.

Electronic Discovery

With the explosion of electronic communications and document storage in recent years, e-discovery abuse has become a major concern. The ease of conducting electronic searches of company files, the informal nature of email communications, the common practice of preserving draft documents on file servers, and the expanding volume of company documents all contribute to the risks of not settling cases for companies. Discovery of vast numbers of electronic documents increases the possibility of litigation adversaries being able to exploit documents that may have been produced with good intentions by any level of staff member but that when used selectively in a trial may unfairly characterize the goals of corporate management.

Bringing More Definition to the Process

To address discovery abuse, new rules are needed to ensure that requests for information are reasonable and equitable –- and that they limit the burdens associated with discovery such as costs, disruptions to business, and unnecessary disclosure of sensitive information not germane to the litigation. Judges should have uniform guidance on properly managing the discovery process, and the Federal Rules of Civil Procedure should outline reasonable limits to discovery processes.

ILR successfully pushed for adoption of two liability restraining changes to the Federal Rules of Civil Procedure that ease some of the overwhelming burden of e-discovery. The first rule change removes sanctions from parties to litigation if some of their electronic records are deleted or lost as a result of the routine, good faith operation of their electronic information systems. The second rule change helps businesses with electronic information that is not reasonably accessible due to burden or cost of obtaining the information by exempting them from having to spend exorbitant amounts of money to make the documents available unless so ordered by a judge.

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