In my last blog I discussed the Tamburo opinion by Magistrate Judge Nan R. Nolan in Chicago. Tamburo v. Dworkin, 2010 WL 4867346 (N.D. Ill. Nov. 17, 2010). That opinion provides a good guide for the use of proportionality, cooperation, and phasing to prevent abuse of e-discovery. This blog will discuss the discovery thoughts of another great Chicago jurist, Frank H. Easterbrook, Chief Judge of the Seventh Circuit Court of Appeals.
The issue of abusive discovery is not new and certainly did not originate with electronic discovery. It goes back to the seventies and eighties when copy machines dramatically increased the number of copies of paper documents. Requests for productions then ballooned from hundreds of pages of documents to tens of thousands of pages. That is quant by today’s standards of trillions of pages, but still, it was an exponential increase. Unscrupulous attorneys then, as now, abused discovery to drive up the costs of litigation and thus the settlement value of their case.
Judge Frank H. Easterbrook raised these issues in the eighties in his famous article, Discovery As Abuse, 69 B.U. L. REV. 635 (1989). Judge Easterbrook is not only an appellate judge, but a renowned scholar and Adjunct Professor of Law at the University of Chicago. Although Judge Easterbrook is primarily an expert on corporate and antitrust law, his article, Discovery As Abuse, delves deeply into the use of discovery, excessive impositional discovery, not to uncover the truth, but to extort higher settlements
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By: Ralph Losey