Are Corporations Ready To Be Transparent And Share Irrelevant Documents With Opposing Counsel To Obtain Substantial Cost Savings

The discovery process does not require a producing party to produce irrelevant documents in response to a request for production under Fed. R. Civ. P. 34. To the contrary, the scope of discovery is expressly limited to discovery that is relevant to any party’s claim or defense, or if good cause is shown, to the subject matter of the case. Fed. R. Civ. Pro. 26(b)(1). The purpose of discovery is to provide a mechanism for making relevant information available to the litigants. See 1983 Advisory Committee Notes to Fed. R. Civ. P. 26(b)(1). This same principle clearly does not apply to irrelevant information.

Pursuant to Rule 26(b)(1), corporations that are producing parties have routinely objected and refused to produce irrelevant documents in response to discovery requests. Moreover, they have spent large sums of money on document review, in part, because they do not want to share irrelevant documents with the opponent out of fear that irrelevant documents could spawn unrelated litigation or that highly confidential, sensitive irrelevant documents could get into the hands of competitors. This is the case even if a receiving party were to agree to the entry of a confidentiality agreement or protective order preventing the use of the information in other litigation. Some producing parties have even attempted with mixed results to redact irrelevant information, such as information about products not at issue in the case, from relevant documents prior to production. ArcelorMittal Cleveland Inc. v. Jewell Coke Co., Case No. 1:10–cv–00362, 2010 WL 5230862 (N.D. Ohio Dec. 16, 2010).

Yet, as described below, in each of the three cases involving predictive coding that have achieved notoriety over the last year, the protocols proposed or agreed to by the parties and/or mandated by the court required that producing parties share the documents and responsiveness coding utilized to train and stabilize the system, including documents coded irrelevant. Read More