Maybe it’s the word. It sounds so positive and promising: “Discovery.” Discovery leads to good and helpful things: “Einstein discovered relativity.” “Ben Franklin discovered electricity” (well, not really, but he was big in electricity). When we discover something, it’s good, never bad. You never read, “Edward Smith discovered an iceberg.” Or, “Amelia Earhart discovered vanishing.”
So maybe we defense lawyers need to change the name. It doesn’t fit anyway. It’s not really discovery. You only discover something once you discover it. When you haven’t discovered it, you’re searching. And when you don’t really know what you’re searching for, you’re guessing. And when you’re searching about a guess, it’s a fishing expedition. If you add the descriptor “expensive,” the reality becomes even clearer. If it were called any of these things, there’d probably less of it.
But we don’t see a name-change coming any time soon, so we’ll have to take solace in courts that call it a fishing expedition when they see one. In King v. Solvay, S.A., No. 2013 U.S. Dist. LEXIS 30752 (S.D. Tex. Mar. 5, 2013), the plaintiffs were qui tam relators who’d sparked investigations by state AGs into alleged False Claims Act violations by the pharmaceutical manufacturer, Abbot Products, Inc., which was later acquired by Solvay Pharmaceuticals, Inc.. The AGs subpoenaed records related to the claims but thereafter decided, as did the federal government, not to pursue an action. Id. at *5. The plaintiffs continued on their own.
The first thing that they did, of course, was to seek additional “discovery,” requesting more than what the states had already gotten by subpoena. They wanted recent and current company documents that plaintiffs believed (guessed, hoped) would reveal “ongoing” fraud. Id. at *6. Defendants argued that the relators had made no factual allegations to support the existence of ongoing fraud and moved for a protective order relieving them of the obligation to (1) produce documents created before 2008, (2) preserve documents created after the last subpoena from the AGs, and (3) preserve documents created after Solvay acquired Abbot.
The court granted the protective order, and for good reasons. To support “discovery” of such documents, the relators pointed to allegations in their complaint that the wrongdoing continued “to the present.” Id. at *12-13. These bare allegations were “insufficient to justify the burden” of more discovery. Id. at *14. The complaint had “no specific and particularized allegations of conduct” occurring after the AGs’ last subpoena. Id. And the relators’ argument that certain employees who were allegedly involved in the past conduct were still at the company wasn’t persuasive either, as it was based on alleged conduct that was at times a decade old, and it nonetheless could not justify the burden to the defendants. Id. at *18-22.
And the burden was significant. The discovery that had already occurred had required defendants to preserve 5 terabytes of data inside roughly a half-million folders covering almost a 20-year period and 89 custodians. Id. at *6. The new, “ongoing” conduct discovery would have resulted in at least another 5 terabytes of data, additional server space to hold that data, and huge costs to hold, process and produce all of it:
It could cost at least $480,300 to process the . . . emails Abbott is currently holding, and processing the additional emails resulting from a hold of Abbott emails could cost another $766,500. Id. Additionally, if contract attorneys were able to review 40 emails per hour, review of the current 1.8 million emails alone will cost $2.3 million, not including quality control, privilege logs, or production costs. Id. Processing the Abbott emails will cost substantially more.
Id. at *7. Against this huge burden, the relators’ guesswork on what employees might be doing and their complaints’ non-specific allegations that wrongdoing continued “to the present” weren’t nearly enough to authorize this additional “discovery.” The court granted the defendants’ motion for a protective order.
With litigation nowadays – certainly in mass torts – discovery of the company seems to just build upon itself, as the broad scope of discovery and plausible guesses by plaintiffs’ attorneys team-up to create a tidal wave that can’t be stopped. The result is tens of millions of documents and over a hundred days of depositions from dozens of company witnesses, all of which is supposedly done to prepare for trial. But then the trials almost never involve more than 200 documents (usually way less), a handful of company witnesses and a couple days of their testimony. That’s madness.
In that context, the word “discovery” doesn’t have the same positive and promising feel that we usually get from it. The court used a better term: “the court does not believe it appropriate to allow Relators’ generalized claims of ongoing conduct to form the basis of a fishing expedition.” Id. at *17 n.2 (emphasis added). That’s more like it.