• June 24, 2014

HourglassIn large litigation involving unbalanced resources on one side of the litigation or the other, the richer side’s tactics that burn up the other side’s resources are cost-effective even if those tactics are rejected by the court and found to be without merit.

Imagine, for example, producing millions of pages of documents and redacting hundreds or thousands of them (that is, removing sections of the documents) based on the claim that the redacted portions are “irrelevant.”  This is not permissible but, pulling such a maneuver will require your adversary to jump through quite a few hoops to review the supposedly irrelevant passages. (And, if the passages are truly irrelevant, the defendant has a double-win – forcing plaintiff to go through motion practice and then snickering to themselves as plaintiffs are forced to re-review the documents for no benefit.)

That is not okay. The rules of civil procedure do not allow for one litigant to determine that a particular document is relevant and responsive but one or more parts of it should be obscured as supposedly not relevant.

The defendant in a large products liability action before U.S. District Court Judge Donovan W. Frank (D. Minn.) took the position that it could be the arbiter of relevance and Judge Frank rejected the position this past week.

But now plaintiffs must re-review untold numbers of now “unredacted” documents, needlessly multiplying the plaintiffs’ lawyers’ document review. The defendant’s ploy has successfully dissipated plaintiffs’ lawyers attention and resources.

It should be noted that the referenced lawsuit is multi-district litigation so there are a great many plaintiffs’ lawyers. They presumably have deep benches to address defendants’ maneuvers. But “deep benches” cannot mean infinite resources and lawyers who are forced to re-review documents cannot be deployed for other tasks.

If courts are going to deter this conduct, they have to punish lawyers who do it. It is the only way to shift the risk/benefit balance.


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