I commented on seeing this crisis coming over a year and a half ago, and I take no pleasure in seeing it borne out.  Via H&J, a recent report published in the Duke Law Journal states:

Sanction motions and sanction awards for e-discovery violations have been trending ever-upward for the last ten years and have now reached historic highs. At the same time, the frequency of sanctions against counsel for e-discovery violations, though small in number, is also increasing. Although serious e-discovery misconduct by parties and counsel should continue to be the subject of sanctions, appropriate consideration should be given to the complexity of e-discovery in ruling upon the increasingly frequent e-discovery sanction motion.

The e-discovery process is indeed complex.  But it is possible for a prudent attorney to avoid an ethical lapse with sufficient diligence and a thorough understanding of the technology involved in the process.  See, for instance, the Qualcom case:

One common but easily avoided e-discovery trap involves the failure to properly oversee the production of electronically stored information.  Courts are increasingly willing to sanction attorneys for failing to make “reasonable inquiry” into their clients’ production of electronically stored information during discovery.


The Qualcomm court determined that some of Qualcomm’s attorneys “assisted, either intentionally or by virtue of acting with reckless disregard for their discovery obligations” in Qualcomm’s discovery violations. While there was no direct evidence that Qualcomm’s attorneys helped to conceal damaging emails, the court found that the attorneys “contributed” to the discovery violation because they chose “to accept the unsubstantiated assurances of an important client that its search was sufficient” and ignored warning signs that Qualcomm’s document search and production were inadequate. The court imposed considerable sanctions against both Qualcomm and its attorneys because the attorneys did not make a “reasonable inquiry” into Qualcomm’s discovery search and production.  In addition to substantial monetary sanctions against Qualcomm, the court referred the sanctioned attorneys to the state bar for investigation and possible sanctions and ordered the attorneys to participate in a comprehensive discovery program to identify the failures in their case management and discovery protocol.

from Navigating E-Discovery: How to Avoid Common Pitfalls


That’s a lot of hyphens in that title, huh?  But well worth it!

As we all know, discovery is expensive, and the massive volume of electronically stored information (ESI) can make it even more so.  Thus cost-shifting provisions of the rules of civil procedure can often make or break the viability of a case.  This can  pose an especial burden on non-parties:

“When non-parties are forced to pay the costs of discovery, the requesting party has no incentive to deter from engaging in fishing expeditions for marginally relevant material. Requesters forced to internalize the cost of discovery will be More inclined to make narrowly-tailored requests reflecting a reasonable balance between the likely relevance of evidence that will be discovered and the costs of compliance.” Linder a Calero-Portocarrero, 183 F.R.D. 314, 322-23 (D.D.C. 1998).

The federal case law in this area appears to unsettled in the area, but in order for a non-party to shift the costs to the requester requires that the discovery be unduly burdensome.  There are many factors considered by the court to determine is a discovery request rises to such a level:

Questions of undue burden invariably lead to questions of cost shifitng… the Northern District of California sets forth eight factors in determining whether to shift cost to the requesting party: (1) the scope of the request; (2) the invasiveness of the request; (3) the need to separate privileged material; (4) the non-party’s financial interest in the litigation; (5) whether the party seeking production of documents ultimately prevails; (6) the relative resources of the parry and the non-parry; (7) the reasonableness of the costs sought; and, (8) the public importance of the litigation. The Sedona Conference(R) Commentary on Non-Party Production & Rule 45 Subpoenas, 9 Sedona Conf. J. 197 at 200 (Fall, 2008).

Standing in marked contrast to the FRCP, the NY CPLR provides for automatic cost-shifiting with respect to nonparties.  According to CPLR Section 3122d, “the reasonable production expenses of a nonparty witness shall be defrayed by the party seeking discovery.”

Complex civil litigation often hinges on discovery, and the discovery scheme of the Federal Rules of Civil Procedure has traditionally revolved around a cost benefit analysis, with the cost shifting to the requesting party if production is unduly burdensome. The advent of the new e-discovery rules continue this, as provided in FRCP 26(b)(2)(B): “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.”

This naturally raises the question, what exactly does “reasonably accessible” mean?

The “reasonably accessible” limit reflects worry about e-discovery’s “enormous costs … becoming the single most expensive facet of litigation.” The cost of e-discovery has two key components: (1) quantity – with businesses exchanging 2.5 trillion e-mails annually, 2 million at a typical company, and with computer files often remaining recoverable after deletion, the amount of attorney time needed to review discovery, and the potential for discovery disputes, has increased; and (2) inaccessibility – digital data “can be expensive or virtually impossible to recover” due to “outmoded storage media and software, and dispersion of information.” …[E]-discovery can cost tens or hundreds of thousands of dollars in even fairly typical cases[.]

Of course, nothing in law is that simple. What is that important piece of discovery isn’t reasonably accessible? FRCP 26(b)(2)(B) goes on to say that “the court may nonetheless order discovery from such sources if the requesting party shows good cause.” However, it would seem that the “good cause” standard is anything but standard:

The Federal Rules of Civil Procedure contain numerous good cause standards. It is a canon of statutory construction that a word used in multiple places in the same legal text should have the same meaning. Thus, the various good cause standards in the Rules should receive the same interpretation. But they do not. […] Even within the more limited universe of discovery rules, there is no single definition of good cause. A party seeking discovery of information that is not relevant to any party’s claims or defenses but is relevant to the subject matter of the action must show good cause pursuant to Rule 26(b)(1); a party seeking a protective order limiting discovery must demonstrate good cause pursuant to Rule 26(c); and a party seeking to conduct an adverse medical examination of another party must demonstrate good cause pursuant to Rule 35(a). Although these good cause standards all appear in the discovery rules, they have each been interpreted differently. As discussed above, the Rule 26(b)(1) good cause standard is weak and does not pose a significant hurdle to parties seeking discovery.
Henry S. Noyes, GOOD CAUSE IS BAD MEDICINE FOR THE NEW E-DISCOVERY RULES 21 Harv. J. Law & Tec 49 at 74-75, (Fall, 2007).

Electronically stored information is hardly a novelty by anyone standards, but in the federal law of discovery it is still a very new concept indeed. It would appear there are still a few kinks that need to be worked out.