A California appellate court has ruled that litigants who demand expensive electronic data discovery have to pay for it. This is a bit of variation on the general rule that litigants bear the cost of their own document production. It appears that the ruling is based on a provision of the California Code of Civil Procedure, but I would expect to see this same approach start to emerge in federal courts, as well as in other states.
While the present context is -- as usual -- high stake commercial litigation, this ruling could have serious repurcussions for individuals or public interest groups. For example, a voting rights case that seeks information from the company that made or programmed the voting machines. Or file-sharing, agricultural IP, the Vioxx litigation, environmental cases, etc. etc.
"This is landmark in the world of day-to-day litigation," said Jacobs, a partner at Morrison & Foerster in San Francisco. "The statute means the demanding party has to pay for discovery.
"We're talking often about hundreds of thousands in discovery documents, and if the demanding party has to pay, there will always be negotiation about the scope of discovery," he said.
He said the ruling "should shield litigants from excessively burdensome demands" for the production of backup tapes.
While cost has always been a factor in discovery, now we can expect a request for documents to which a litigant is indisputably entitled will become a negotiation based not on the merits of the request, but how much information you can afford to ask for. As a general rule, the producing party will have the primary say in how much it will cost. Expect access to justice to start costing a lot more.
Link: law.com - Article.
I categorize this as a 3rd Wave conflict, because I see it as part of the overall power struggle for a place at the table for people who are neither corporate nor state-sponsored. The gap widens . . .