Regular readers may realize I have written little about e-discovery recently: I lost interest in the predictive coding debates. Long ago I concluded that “smart” software, guided by discovery professionals, beats armies of lawyers conducting linear review. Now, however, an article by three Skadden Arps lawyers prompts me to turn back to e-discovery.

Partners John Beisner and Jessica Miller and associate Jordan Schwartz wrote a two-part article in Legal Technology News, Can E-Discovery Violate Due Process? (Part 1 (7 June 2013); Part 2 (10 June 2013)). The authors note the high cost of e-discovery and potential changes to the Federal Rules of Civil Procedure intended to reduce that cost. They argue that

“current discovery rules impose substantial burdens that pose a significant threat to defendants’ due process rights.” (Emphasis added.)

Specifically, they say that even if the proposed amendments to Federal Rules of Civil Procedure governing discovery (Note 1) become law, defendants will face costs that are too high:

“The reality for most civil litigation is that the defendants’ obligation to bear these exorbitant discovery costs incentivizes plaintiffs to serve burdensome discovery requests on defendants with zero downside risk to themselves…. because defendants seek to avoid these exorbitant costs, discovery is all too often used as a weapon to coerce settlement of claims, regardless of their merit”

Here’s where it get interesting:

“forcing a defendant to pay significant discovery expenses (without any contribution from the plaintiff) absent any finding of liability arguably infringes the defendant’s right to due process.”

They acknowledge that courts have yet to weigh in on the due process issue as applied to the producer-pays rule and note the novelty of their position.

After setting forth the case law and reasoning to support their view, they suggest additional rule changes:

“One solution is to establish a general rule that each party pays the costs of the discovery it requests, subject to adjustments by the court… A more modest step would be to expand cost shifting for electronic discovery…. While some courts have sanctioned cost-shifting for electronic discovery in their courtrooms, the rules currently do not require that courts consider cost-shifting when overseeing discovery.”

For better or worse, the US is not a cost-shifting system (Note 2). So, with the qualifier that I do not practice law, I will venture to say that their position seems to require line drawing. I see no clear and bright rule for applying “subject to adjustments by the court” or creating a framework for when courts should shift costs.

To the extent the due process argument has legs today, it probably would have been equally valid 20+ years ago when defendants fretted about producing 100+ bankers’ boxes of paper (as oppose to, say, 5 to 15). Even in 1990, I think some defendants said (or at least thought) “discovery is all too often used as a weapon to coerce settlement of claims, regardless of their merit. ” The essential issues today seem the same as they did then; only the quantities have changed. That makes me wonder whether leaving the legal market in another line drawing exercise helps.

Once we draw lines, I think we come right back to the predictive coding debate. If costs are “low enough”, then cost shifting seems less likely; if costs are “high enough”, more likely. The big discovery cost drivers are the technology services and professionals’ time to collect, process, and review data and documents. If we stipulate that automated discovery and review techniques

  1. cost much less than the alternative and
  2. are “good enough” (whatever that means – another line drawing issue!),

would courts order “automate” more readily than they would “shift costs”? So is due process just a back-door way to pressure the judiciary (or perhaps the legislature) to come to grips with how we do discovery?

I am all for driving down legal costs (Note 3) and appreciate the authors’ new and provocative thesis. My view that “due process is predictive coding in hiding” may be off-base. So I look forward to hearing other commentators’ reaction to the Skadden-authored article and my view.

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Note 1: The article offers a good recap of the proposed rule changes; see also Proposed Discovery Amendments Move to Public Comment (LTN, 6 June 2013).

Note 2: It is interesting, and I suspect entirely coincidental, that this article appears days after the Obama administration proposed steps to curtail so-called patent trolls (aka non-practicing entities), in part, by cost shifting.

Note 3: Over at Twitter, I recently started a series of Tweets hashtagged #DoLessLaw. So far, unlike with many of my other Tweets, I have not managed to engage anyone on the topic. I find it deeply concerning that, all the chatter about better value notwithsanding, few seem to look for ways to create value by reducing legal complexity and legal acts. For more on that idea, see the Saturday Wall Street Journal, How America Lost Its Way, in which Niall Ferguson argues too much law is stifling the US economy.