How Proportionality Can Reign Discovery on Duplicative Data

Parties in litigation often want to charge every windmill. The desire to fight every battle, or propound requests, conduct review, or issue deposition notices, can result in high costs with little results. Proportionality is one tool judges have to keep parties from destructive discovery conduct.

In a contentious eDiscovery case, the Plaintiffs took the position they were entitled to an outdated database that was duplicative of other data and to question a witness about it. Winfield v. City of N.Y., 2018 U.S. Dist. LEXIS 84039, at *2-4 (S.D.N.Y. May 18, 2018).

That was not the best plan.

The Court explained that the Plaintiffs were not “entitled to all information responsive to their broad requests for production.” Winfield, at *2. Invoking the proportionality requirements of Rule 26(b)(1) and Rule 1, the Court stated it had to balance the 1) need for both parties to have the time and opportunity to gather sufficient information to fairly present their claims and defenses on the merits and (2) the need to secure the speedy and inexpensive determination of the action. Winfield, at *2-3.

The Defendants had explained the database would be largely duplicative and less reliable than what had already been produced. Winfield, at *3. The Plaintiffs provided no evidence to challenge the Defendant’s representations. Id. Magistrate Judge Katharine Parker stated that based on the time the production had already taken, that producing the other database was either warranted or proportional. Winfield, at *3-4. As such, the Plaintiffs motion to compel was denied on that issue.

Bow Tie Thoughts

Don’t fight every battle, because you can end up losing the war. It is very human to seek confirmation that data is duplicative and does not need to be produced. However, when parties start doing discovery about discovery, challenging representations to court without evidence, discovery can become an out of control monster that eats the merits of the case. Proportionality is a very sound judicial tool to keep parties in check so they focus on the claims in the lawsuit, and do not go charging windmills.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.