A State Court Judge’s View on e-Discovery (Part Two)

If the discovery needed is “x”, do not ask for 2x or 3x, hoping the judge will give you at least x. Avoid the temptation to ask for more than is needed to guard against the judge “splitting the baby.” As a mediator before I became a judge, I repeatedly witnessed the dance of offers and counter-offers posed by the parties that led magically to a number somewhere between the opening demand and the opening offer some hours or days later. Representations to a judge are a totally different matter. As a judge, I expected lawyers to truthfully present their position, not posture toward a result. It is dishonest and unethical to ask for 2x when x is just and proper. In electronic discovery, it can have unintended adverse consequences, excessive cost and data dumping being two of them. However, the most costly unintended consequence is losing the trust of the judge and opposing counsel when the truth becomes evident. The same applies to opposing a request. Do not advocate producing x when only 2x will provide full discovery. The truth tends to surface as the case progresses, and judges constantly assess and learn which counsel to trust. Earn and keep the judge’s trust.

In a contested hearing, the judge will expect that there may be two honestly held opposing positions on scope of discovery from which the judge must choose or in the alternative create some compromise. What a state court judge may not have is a good feel for the burden of excessive discovery and proportionality. Judges may need to be educated on staged discovery, sampling, and cost-shifting as methods for keeping costs in line. Proportionality, while a feature of Florida discovery jurisprudence, has not been frequently encountered, and until the concept is experienced more often, the propensity may be to ensure that the requesting party gets everything needed to make their case.

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Source: e-discoveryteam.com
By: Judge Ralph Artigliere