August 20, 2015 Articles

How to Use the Rule 26(f) Conference to Avoid Data Dumps

Courts have uniformly disapproved litigators drowning opposing counsel in useless data.

By Kelly A. Frye

Back in the days of paper discovery—when productions came in bankers’ boxes and document reviews involved paper cuts—litigators would attempt to try to gain a tactical advantage by “burying” opponents under mountains of paper. The modern version of this litigation tactic is the “data dump.” Data dumps involve responding to discovery requests or subpoenas by unnecessarily transmitting large quantities of electronically stored information (ESI), much of which is irrelevant, often without any explanation or organization. This practice is even more problematic than its old school counterpart because of the time and cost associated with e-discovery. If ESI lacks organization—that is, if it is produced in a confusing array of formats or in obsolete formats, without proper indexing, or contains file types different than what was requested—the data may be impossible to electronically organize, let alone search or review. Structured data, like the data from databases, can be dumped in an unstructured, unusable state without the program they were created with or detailed information on how they were created and stored. Moreover, massive quantities of data drive up the costs of review, are time consuming, and may impede litigation efforts by obscuring the real issues.

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