eral rules, pilot projects, and standing
orders that encourage judges to be more
proactive in identifying and discussing
e-discovery issues at pretrial conferences. The value of judicial jawboning
should not be underestimated. A judge’s
advisory opinion at a conference may
well obviate a future dispute because
counsel take judicial musings seriously.
At the same time, the judge who
does not issue a formal order is better
able to reconsider as additional information becomes available. Courts can
also phase discovery and require sampling so that the parties are better able
to determine the marginal value of each
incremental demand for information.
» Follow the Money. These are not
the only tools available to a judge short
of issuing a formal order. While judges
who have intervened most actively in
discovery disputes have adopted what
might be called the command model,
the better approach is to emulate the
market economy and shift discovery
costs to the requesting party in appropriate circumstances. This has both
direct and indirect benefits. The direct
benefits are obvious: the responsibility for evaluating whether the benefit
of some particular discovery is worth
the cost is placed on the party seeking
it. That way, the requesting party is no
longer free to promulgate sweeping
demands, subject only to a court’s often
arbitrary assessment of whether the discovery sought is proportional under
Fed. R. Civ. P. Rule 26(b)(2)(C).
The indirect value of cost-shifting
is at least as significant. As courts dem-
onstrate a greater willingness to shift
costs, two things happen. First, par-
ties discuss cost-sharing among them-
selves, recognizing that an agreement
minimizes the risk of an adverse court
decision on cost allocation. Second,
when a party realizes that its adversary
may seek to have costs shifted, it is more
likely to consider the proportionality of
its discovery demands at the outset, as
well as to agree to strategies like sam-
pling that will reduce the costs.
James C. Francis IV is a United States
Magistrate Judge for the Southern District of New York. Email: James_C_
Francis@nysd.uscourts.gov.
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