Interrogatories and Disclosures: Facilitated by eDiscovery?
In the United States District Court for the Eastern District of Pennsylvania, the court took up the question of whether eDiscovery was able to facilitate early fact disclosure, this specifically pertained to interrogatories. The court departed from common practice, in which disclosures typically occur after the close of discovery, and emphasized that early disclosure will advance litigation, promote settlement discussions, and reduce attorneys’ fees. In re: Domestic Drywall Antitrust Litig., MDL No. 2437, 2014 WL 1909260 (E.D. Pa. May 12, 2014) (Baylson, J.).
Defendants’ responded to plaintiff ESI requests, and Defendants later moved to compel plaintiffs to respond to two interrogatories seeking identification of the products, alleged conspirer, and the acts and omissions taken in furtherance of the conspiracy. Plaintiffs objected on the grounds that the interrogatories were premature and that they should not have to answer with detailed factual evidence.
Judge Baylson, in disagreeing with the prematurity of the interrogatories, gave three policy reasons for the early disclosure ruling:
- Fair discovery benefits from the frequent exchange of information;
- Information exchange enables the facilitation of evaluation of the strengths and weaknesses of a case, and may promote settlement in order to guard against attorney’s fees; and
- ESI tools enable parties to use search terms and other methods to quickly identify relevant information and documents produced.
The case offers a practical approach for lawyers on both sides of the area. We must understand a simple truth: 2014 is a world in which we cannot escape the reality of ESI’s proliferation. Given the contemporary tools of discovery, ESI must be considered in ruling on discovery disputes.
Judge Baylson succinctly addresses the issue of ESI effects on discovery when he states, “Ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals.” Id.