One of the principal consequences of shifting most business communications from paper to electronic media is that discovery in business litigation cases has become substantially more expensive. Now, electronic searches, which often require hiring a third-party vendor, are frequently required. This increases expenses for all parties involved, without corresponding likelihood of a greater return from the litigation.
Consequences of Expensive Legal Discovery
As a result, many meritorious lawsuits are no longer filed – lawsuits that would have been pursued twenty years ago, which could have led to more affordable and efficient resolutions. For some, the rising costs of litigation have made it a less practical tool for businesses to protect their contractual rights, intellectual property, and other important relationships.
The increasing expenses associated with discovery, expert testimony, and electronic searches have priced many businesses out of seeking legal recourse, particularly in cases where the potential damages might not justify the high costs of litigation. This shift has diminished the ability of businesses to hold parties accountable and resolve disputes effectively.
Minimizing Discovery Costs in Litigation
While it's unrealistic to expect everyone to revert to paper communications again, we can reduce the cost of discovery in litigation by imposing greater limits on what can be discovered without a court order. Many jurisdictions have already taken steps in this direction by limiting the number of interrogatories that can be served without permission. However, interrogatories have historically been one of the least effective tools in written discovery, often resulting in responses that provide minimal substantive value. By focusing on more meaningful and targeted discovery methods, and restricting excessive or unnecessary requests, we can help lower costs and make litigation more accessible.
The same approach should be applied to document requests and requests for admissions. While most attorneys do not misuse requests for admissions, some attorneys engage in practices that push the boundaries of reasonableness. For example, in a current case, the plaintiff's lawyers have asked each of the multiple individual defendants to respond to more than seventy requests to admit! This is an excessive and burdensome use of the discovery process. To prevent such tactics, there should be a firm limit on the number of such requests, with the sole exception being those related to admitting the authenticity of documents. This would help ensure that discovery remains efficient and proportional to the needs of the case.
Similarly, document requests can be the most burdensome of all discovery tools and should be limited in number and scope – perhaps to limits set based on the type and size of the lawsuit. Obligating those receiving massive document requests to seek protective orders is not an adequate solution, since many courts routinely deny those motions.
Balancing Discovery Limits
Will these limits result in some potentially useful information being withheld? Of course, but the tradeoff is that litigation will likely become more affordable and accessible overall. For those who have devoted their careers to business litigation, this would be an unambiguously positive development.
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