Thursday, January 03, 2008

2008-01-04 Paucity Plus Hunch Insufficient Basis to Grant Additional eDiscovery

U.S. Magistrate Judge John Facciola's eDiscovery decisions are typically cutting edge. Today's decision in Hubbard v Potter, Civil Action No. 03-1062 (D.C.D.C. 2007) is true to form, and exposes challenges faced by a party to whom (apparently) the importance of properly staged electronic discovery came too late.

In denying a round of what Judge Facciola describes (imo, aptly) as "meta-discovery" or discovery about discovery, and invoking Zubulake, he reminds the parties that "[I]nstead of chasing the theoretical possibility that additional documents exist, courts have insisted that the documents that have been produced permit a reasonable deduction that other documents may exist or did exist and have been destroyed." Moreover, the existence of a mere "paucity" of discovery documents does not warrant the granting of additional discovery, where such "paucity" is accompanied only by a "hunch" that there has been a failure to produce.

The Court paid greater attention to plaintiffs’ argument that additional discovery was warranted "because on several occasions defendant produced responsive documents yet maintained that they were non-responsive," and found that argument "far more compelling."
The defendant in this case first failed to produce documents, then labeled these documents "Non-responsive" with which characterization the Court roundly and emphatically disagreed.

Nevertheless, Judge Facciola denied plaintiffs' request for additional electronic discovery, again basing that denial on the inadequacy of a hunch-based-on-paucity argument.

The Court first notes that a great number of electronic documents had been printed out and disclosed by the defendant in hard copy:

"For example, although plaintiffs complain that many facilities provided very little by way of electronic documentation, plaintiffs concede that '[s]ome of the 25 covered facilities produced a significant volume of hard copies of electronic correspondence.'''

The Court then states that "[P]laintiffs have no evidence that there exist additional responsive electronic documents. Rather, as with plaintiffs’ general argument regarding the paucity of documents, plaintiffs can point to nothing more than their own speculation that other electronic documents exist."

It would have been interesting to sit in on that Fed. R. Civ. P. 16(b)5 meeting. One might wonder just how badly worded was Plaintiffs' document production request(s), whether the plaintiffs reserved the right to conduct adequate electronic discovery, and whether documents were sought after in their origination format, i.e., in native electronic format.

I suspect not, and am reminded of Judge Grimm's Lorraine v Markel American dicta in whcih he urges attorneys involved in eLitigation to "get it right the first time."