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 from what was requested—the data may be impossible to electronically organize, 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.
While the temptation to drown adversaries in an avalanche of useless data can be high, courts have uniformly disapproved of such gamesmanship. For example, in SEC v. Collins & Aikman Corp., No. 07 Civ. 2419, 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009), the Securities and Exchange Commission (SEC) dumped 1.7 million records, comprising 10.6 million pages, on the defendant and told it to search them for relevant materials, asserting that it did not have a way to collect documents relating specifically to the subjects relevant to the case. In reviewing the SEC’s actions, the court stated that Rule 34 of the Federal Rules of Civil Procedure prohibits “simply dumping large quantities of unrequested materials onto the discovering party along with the items actually sought.” Id. at *4. The court also found that expecting the defendant to do the plaintiff’s work, which would have taken a substantial amount of time and money, constituted “undue hardship by any definition.” Id. at *5. In the end, the court ordered the SEC to perform its e-discovery duties in accordance with the rules. To read the full article and get more tips on how to avoid data dumps, click here.