Containing E-Discovery Costs - And The Legislative Assault On Twombly And Iqbal

The Editor interviews Richard A. Schneider (Doc), Partner, King & Spalding LLP.

Editor: Are your corporate counsel clients concerned about litigation costs?

Schneider: Definitely.

Editor: To what extent do they attribute this to e-discovery costs resulting from notice pleading?

Schneider: The reality is that discovery now in most large cases is e-discovery - and nothing more or less. Information is created and exchanged electronically, and the filing of any case is in part an effort to fish for information in a vast electronic sea. Defendants rightfully insist on a relevance screen and oppose fishing expeditions launched in a shaky vessel of notice pleading. In my experience, it is not necessarily bare notice pleading that leads to extensive e-discovery costs. Instead, an opponent might assert a tenable claim that meets Twombly and Iqbal (Twiqbal), but then attempts to push the boundaries of relevance to inquire into matters and impose burdens that are not justified.

Editor: Do you feel that e-discovery costs and disclosures of confidential data as a result of e-discovery intimidate corporations into settlement of otherwise meritorious cases?

Schneider: Settlements are sometimes driven by the practical necessity to avoid costs - this is not caving into intimidation, but is typically a steely-eyed assessment of the practical realities. Corporations have a right to call on the courts to protect them from needless e-discovery costs. I have not had a case myself personally where e-discovery costs have driven a settlement.

Editor: Is the amount of new information uncovered by e-discovery sufficient to justify its cost? How much is used at trial?

Schneider: I would say there are typically five grains of wheat in every truckful of chaff. This is something like the paper discovery process, however, where you might uncover two or three memos that become marquee events out of a mountain range of bankers boxes each stuffed with 3000 pages of nothing. There are, however, two major differences. First, our modern systems and retention of electronic data mean that there are ten trucks for every one that we had before. Second, people do tend to say things with less precision in e-mails that they would ever say in a more formal memorandum or letter.

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Source: Metropolitan Corporate Counsel