Leveling the Playing Field

The age of ESI changed everything in terms of how quickly and easily documents are created and then stored. As a consequence, every corporate defendant in a product liability case today can expect to spend thousands if not hundreds of thousands of dollars producing documents in discovery. Indeed, it is hardly an overstatement to say that discovery costs are staggering. According to one recent survey, “for the period 2006-2008, the average company paid average discovery costs per case of $621,880 to $2,993,567. Companies at the high end [of the scale] during the same time periods reported average per-case discovery costs ranging from $2,354,868 to $9,759,900.” Lawyers for Civil Justice, et al., Litigation Costs Survey of Major Companies 3 (May 2010) (available at www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/Litigation%20Cost%20Survey%20of%20Major%20Companies.pdf).

Discovery costs of this magnitude are troublesome for nearly every corporate defendant not just because they are an added cost of litigation, but because they routinely mount at the outset of the case, before the merits (or lack thereof) of the plaintiff's claims are ever seriously addressed. Discovery costs are particularly frustrating for a product liability defendant because they are asymmetrical. In product liability litigation, plaintiffs ordinarily do not face similar document production burdens. Taking advantage of this disparity, many plaintiffs' attorneys impudently serve wide-ranging requests for production not to obtain requested documents, but rather to gain early litigation leverage. See, e.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 559 (2007) (noting “the problem of discovery abuse” and that “the threat of discovery expense will push cost-conscious defendants to settle even anemic cases”).