Lawsuit Discovery in the Age of Big Data

Discovery is the step in litigation in which the plaintiff and the defendant gather and share information. It can be one of the most expensive steps. In the age of electronic data, discovery includes gathering information from smartphones, computers, laptops, clouds, email servers and the multitude of other smart devices that might contain relevant information in a lawsuit. Accessing, sorting and sharing this magnitude of data heap a hefty price tag on lawsuits, as much as 50 percent of a lawsuit’s legal expenses.

The Federal Rules of Civil Procedure were updated at the end of 2015 with the intention of streamlining discovery to account for the rising costs. Much of the update parallels the principles recommended in the ALEC model policy on electronic discovery that provides an avenue for state legislatures to improve state rules of civil procedure.

Most notably, the changes include an innovative proportionality principle, requiring the scope of discovery to be proportional to the needs of the case. Effectively, judges should weigh the expense to procure the data with the expected relevance of the data to the case; the benefit of having the data may have to outweigh the burden of the discovery. Consequently, plaintiffs and defendants will be disincentivized from requesting mounds of irrelevant and costly documents merely to delay justice or force settlement.

The federal update also confirms the court’s authority to allocate discovery costs, enabling the courts to shift the costs associated with discovery to the opposing party if deemed appropriate. This protection should encourage the responsible use of the discovery process to gather meaningful information rather than derail justice.

State legislators should pay attention to federal rule changes, which set an important precedent for state courts, as they consider updates to state rules. While each state has autonomy in updating its rules, one study found that of the 33 states with existing rules quite similar to the federal rules, as many as 62 percent of amendments were adopted.

The Federal Rules Committee, to the applause of Chief Justice John Roberts, made a point of tailoring discovery rules to the 21^st century. State rules need to be similarly updated to keep high discovery costs from blocking or tarnishing access to the judiciary.

In many states, rules of civil procedure are amended by state courts and/or the state bar association. But in some states – notably California, Georgia, Illinois, Kansas, North Carolina and Oklahoma – state legislators play a significant role in changing their rules through statutory reform.