On motion by defendants to compel plaintiffs’ response to interrogatories…
The judge says that the electronic document database makes facts easy to find; this is not like the old days, when businesses communicated with smoke signals:Remember those days? The days when businesses communicated with smoke signals?
Judge Michael Baylson says that in this post-smoke-signal era counsel can “search a large collection of documents for specific facts, without significant burden… the actual searching is not expensive.” Judge Baylson goes on to get rather specific regarding the types of “facts” which are easily searched:I agree that it is easy to search ESI databases. To search. Finding information is more difficult. Compiling the found information to develop a record of facts is even more difficult. The example provided by the judge, where we use our ESI database to figure out when trade shows took place and who attended those shows is not (necessarily) “easy” and “inexpensive.”
1. The parties are three months into an eight month discovery phase. Plaintiff’s offered to answer the interrogatories within 60 days of the close of this phase of discovery. Defendants rejected the offer
2. The judge orders the plaintiffs to answer the interrogatories but he limits the scope by acknowledging that the answers will not be complete and only requires disclosure of facts “currently available.”
The judge’s decision is surprising to this blogger because of the rationale used. I just do not agree that “facts” are that easy to identify in a database of millions of documents. However, plaintiff loses this one, so what can we do better next time? The memo in opposition is missing a detailed plan describing how document review is being conducted, what analysis techniques are going to be applied, what the schedule is, how much it will cost, etc. Now, I am not sure this would alter the result in this case because the result here is rather toothless. However, the judge makes the point that early answers to contention questions should advance the goals of the Federal Rules of Civil Procedure.The opposition to the motion should specifically state why early answers do not make determination just, speedy, and inexpensive. In other words, state specifically why early answers will make determination less just, less speedy, and more expensive. The way you do this is by detailing your document review plan.