Denied without Rational Basis
E-discovery is not the gateway to a feast for the litigant requesting access to the electronic records held by its adversary. The party requesting e-discovery of complex information
from a larger enterprise must be careful. If the request is not targeted, proportionate to the seriousness of the case and rationally based on already-known evidence, the request may be blocked.
Sanctions for Overly-Broad eDiscovery Request?
One e-discovery expert, Mary Mack, even predicts that soon a court will sanction a requester for being overly broad in its e-discovery request.
Another leader in e-discovery, Craig Ball, advises that when a requester demands that the record holder preserve ESI, the requester is shooting himself in the foot if he “demands the moon and paralyzes [his] opponent’s operations.”
In other words, crafting an e-discovery request is hard work. The request must be tailored to the case at hand as it exists – and according to the information that is available – at the time of the request.
See Mirbeau of Geneva Lake, LLC v. City of Lake Geneva, 2009 U.S. Dist. LEXIS 101104 (E.D. Wis. Oct. 15, 2009). After a city government turned over some paper printouts of email, the requester (Mirbeau) demanded that the city make all its computers and electronic storage devices available for forensic examination. To justify this demand, the requestor argued that, in an earlier deposition, a city employee hinted that some relevant electronic evidence was being destroyed.
The court denied the request because the requester “failed to demonstrate why a more rigorous discovery process, with extensive forensics analysis of the computers by the plaintiffs, is needed in this case…. Mirbeau has failed to identify what type of information it hopes will be discovered through the forensic mapping of the entire City’s computer system, and Mirbeau has not explained that the information it is requesting would be in the form in which the defendant’s ESI [electronically stored information] is normally maintained.”
Court Urges Cooperation
Still, the court believed further e-discovery was warranted because the city had been less than diligent in retrieving records. The court urged the parties to cooperate to come up with a fair way to get information. It said : “While not intended to be all inclusive, the parties need to contemplate: (1) what different methods could be used to find ESI relevant to this litigation; (2) whether neutral parties could be procured to run scans on the electronic devices of the defendants; (3) whether the searches for ESI could be staggered, such as not to disrupt the City’s ability to function; (4) whether the searches could be narrowed such that they are focused only on certain parties and certain dates; and (5) what methods need to be in place to ensure that the privacy rights of third parties are not adversely affected during the discovery process.”
Rational Request, Based on Existing Evidence
The negotiation of e-discovery is a delicate, intellectual process. It's not enough for the requester to say, "give me [or save for me] everything you got." Nor is it enough for the record holder to say, "you aren't entitled to anything more," or "we just don't have any more records than these."
In this computer age -- when one fully comprehends every scrap of data that may exist anywhere on an iPhone, hard drive, or backup tape -- the quantity of records in an enterprise is infinite. Accordingly, it is ridiculous to say either:
- "I want everything" (to find and disclose every last data element takes too much effort); or
- "nothing more exists" (something more always exists somewhere within the control of the enterprise).
For the requesting party, a key challenge is to gather enough intelligence via depositions, interrogatories or other research to inform rational e-records demands.
For the responding party, the challenge is to be cooperative, while not enabling a "fishing expedition" by the requester.