Three Ways to Limit the Scope of eDiscovery
Updated: Feb 15
How to Control eDiscovery Costs
This post discusses three ways to limit discovery, focusing on federal court and the federal rules of civil procedure. Similar procedures are also often available in state court proceedings.
The easiest way to avoid disputes about the scope of discovery is often for parties to negotiate a discovery plan at the beginning of the case that outlines what types of ESI will be collected and how it generally will be searched. These types of negotiations can take place at the Rule 26(f) conference.
The 2015 comments to Rule 26 instruct the parties to explore the types of information each side will likely seek through discovery and the discovery’s relative importance to resolving the issues.
If the attorneys are well-versed in the nature and volume of relevant ESI their clients have, as well as the burdens associated with collecting and reviewing it, the Rule 26(f) conference can be an opportunity to reach an agreement to appropriately limit the scope of discovery.
Objections to Requests for Production
If that does not work, and a party receives requests for production that seek burdensome or non-proportional discovery, the party can serve objections to the scope of this discovery as part of its discovery responses under Rule 34.
The party seeking the discovery should be able to explain the ways in which the underlying information is important, proportional, and bears on the issues in the case. To learn about proportionality, see my post: What Proportional Really Means in Discovery.
The responding party may also expressly seek a protective order under FRCP 26(c)(1)(B) to limit or seek cost-shifting for discovery that the opposing party is seeking.
The court may order that the discovery is not permitted because it is not proportional or imposes an undue burden.
Alternatively, through a protective order, the court could order some or all of the discovery but require that the requesting party pay the costs associated with collecting, reviewing, and producing it.
While the comments to Rule 26 are clear that cost-shifting should not become a “common practice”, and that responding parties should continue to assume they will bear the costs of responding to discovery, the Rule does recognize that cost-shifting is one avenue to lessen the burdens of discovery.
Disclaimer: The statements expressed in this posting are my own and are for general informational purposes only and do not constitute legal advice or a legal opinion.