Judge Shira Scheindlin Advocates Rolling Discovery
My last post highlighted an observation by Judge Shira Scheindlin’s, judge in the seminal Zubulake v UBS Warburg, in a podcast with Ralph Losey, attorney and frequent e-discovery blogger.
Both have wise and thoughtful comments on both e-discovery and legal education. However, Judge Scheindlin introduced one idea that is, I believe, so important as to merit an entire discussion by itself.
In expressing concerns about the cost of e‑discovery being used as a bludgeon to force defendants to settlements in order to avoid the costs of e-discovery, she advocates “rolling discovery.”
And I know there’s been a fear, I hear it all the time in The Bar, that the cost of e-discovery is shifting the ground in terms of the ability to extort settlements. But I do think … that there is no need to try and find every piece of relevant email, but you should instead scale your search. We should be thinking in terms of rolling productions in a series. Let’s start off – let’s see what we can get in an economical manner and produce that first, and then come back with secondary, more focused discovery. Because, you know, I don’t think you should have to spend a million dollars to find electronic evidence if the case is two million. I think that’s where you go immediately for protection and do not allow yourself to be extorted.
I used to do human factors research. We often had questionnaires for subjects to complete or had materials subjects had to manipulate. Before we started the study, we tried the materials out on ourselves, graduate students, and teaching assistants. We used the testing to identify typos, confusing instructions, or a missing step. If we were trying to get funding for the study, we would do a small study, called a pilot study, which we used to show agencies as proof of concept.
Rolling discovery has the same concept. A smaller initial discovery request would test the search terms and criteria. It could be used to develop a realistic estimate of the eventual costs and could let attorneys begin their review earlier in the production process. It could verify an argument of some materials not being “reasonably accessible” as provided in the e-discovery amendments to the FRCP.
A question to my readers: What would have to change in order to implement a rolling discovery process? What are the obstacles to a rolling discovery procedure?
