“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.”

In re Domestic Drywall Antitrust Litig., —F. Supp. 2d—, 2014 WL 1909260 (E.D. Pa. May 12, 2014)

The issue presented is whether Plaintiffs must provide facts supporting Plaintiffs’ allegations—a frequent issue in antitrust litigation. The Court concludes, because of Plaintiffs’ counsel’s felicitous access to electronically stored information, that Plaintiffs must provide a pretrial statement setting forth the facts they now have, and Defendants must subsequently reciprocate.

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.

In this case, Defendants moved to compel Plaintiffs to respond to interrogatories seeking disclosure of certain facts supporting the plaintiffs’ contentions.  Plaintiffs objected that the interrogatories were standard “contention” interrogatories and thus were premature at the early stage of litigation and also argued that additional review of the large volume of documents produced by the defendants was required.

Sparing the details, the court ultimately concluded that Defendants’ requests were not premature:

Because Defendants have represented that they have largely completed their document production and Plaintiffs have shown in some of their briefs that they have acquired detailed knowledge of some of the documents produced, the Court concludes that Defendants’ request is not premature, given the abilities of an ESI base and search program for finding documents.

The court further concluded that: “Plaintiffs should provide the facts currently available, from the information that has already been exchanged and from their own investigation.” Rather than compelling individual plaintiffs to answer Defendants’ interrogatories, however, the court ordered that Plaintiffs’ counsel submit a series of pretrial statements on specified issues, setting forth the facts in Plaintiffs’ possession and supporting the plaintiffs’ allegations.

Notably, the court’s analysis relied substantially on the notion that because a large portion of the discovery was in an electronic format, the burden of managing and searching the information was sufficiently low to justify the court’s order.  For example, the court stated (among other things):

• The decisions cited above were mostly decided before the proliferation of computer programs which enable counsel to search a large collection of documents for specific facts, without significant burden. Although there is a significant expense factor in collecting the documents and having them appropriately entered into an electronic form, once that expense has been undertaken, which is a normal expense in complex litigation, the actual searching for documents for specific facts is not expensive.
• ESI tools enable parties to use search terms and other methods to quickly identify relevant information and documents produced. The benefits of these ESI tools substantially reduce the burden on Plaintiffs to provide the facts that the Defendants have requested.
  In this case, both Plaintiffs’ and Defendants’ counsel are using ESI.  The briefs show they are diligently using the information provided by their own clients, as well as discovery provided by opposing parties.  Rulings on discovery in 2014 must recognize we live in a world of ESI, which supports the Court’s requirement that counsel submit pretrial factual statements as part of discovery, in part because doing so is not burdensome.
• Although ESI is often condemned as overly expensive and unproductive, there are some cases in which its benefits vastly outweigh its costs.  This case is likely such a case. . . . Given contemporary tools of discovery, ESI plays an important part, and must be considered in ruling on discovery disputes. In this case, the agreement of counsel for 1,100 search terms and the millions of documents produced as a result can only be reviewed, and the relevant information efficiently extracted, by the use of computer-based programs. There is no question that the availability of ESI has promoted a beneficial improvement in the productivity of lawyers.