Michael Fox, who jots down his thoughts about employment law and other things over on his excellent blog, Jottings by an Employer’s Lawyer, raised an interesting point about electronic discovery in a post the other day when he was commenting on my recent discussion of whether electronic discovery threatens to render arbitration the better forum for resolving complex disputes. Michael pointed out that scalability is a key issue that should be considered when it comes to the appropriateness of ordering electronic discovery, and he raises the question of whether electronic discovery that is appropriate in a multimillion dollar case is equally appropriate in a case worth ten times less.
To ask the question is, in my book, to answer it, and I think that was Michael’s point as well. As the courts proceed to develop a body of jurisprudence governing electronic discovery, it seems clear that scalability is a factor that needs to be taken into account. It only makes sense, given the expense of electronic discovery, that as a case moves downrange in terms of the amount at issue, the obligation of a party seeking electronic discovery to actually document a need for such discovery (beyond basic and easily obtained emails and the like) and to evidence that such discovery is likely to be fruitful increase. I have talked before about my belief that the expense of this type of discovery requires that stricter showings of the need for such discovery be imposed than has traditionally been imposed on parties seeking discovery, and this is a natural concomitant of that idea. It is all part of the same thesis: that electronic discovery cannot be allowed to become the central focus and expense of litigation, must instead be treated as an adjunct to obtaining a just outcome, and as a result should be allowed only when and to the extent it is cost appropriate.