Proportionality in Government e-Discovery – June 2011 IQPC Presentation

Government litigants have an enormous impact on civil litigation. Because the United States is the most frequent and successful litigant in the federal courts, the federal government as a litigant plays “a central role in the development of law and policy in the United States courts.” G. Sisk, Litigation with the Federal Government” (Foundation Press 2000), 1.

There have, however, been a number of decisions that have been highly critical of government efforts in the ESI arena. E.g., Moore v. Napolitano, 723 F.Supp.2d 167 (D.D.C. 2010)(government made a “mockery” of process);  In Re Fannie Mae Sec. Litig., 552 F.3d 814 (D.C.Cir. 2009)(contempt); Un. Med. Suppl Co., Inc. v. U.S., 77 Fed.Cl. 257 (Fed.Cl. 2007)(sanctions).

Authorities are divided on the question of whether the government is to be treated like any other litigant. The United Medical court wrote that:

“Generally speaking, ‘when the United States comes into court. . . it is. . . as any other litigant…. It is the duty of the United States, no less than any other party before this court to ensure, through its agents, that documents relevant to a case are preserved.”

Id. Others have argued that, because litigation diverts scarce public resources, special considerations are in order.

Proportionality principles provide at least a partial solution to the perceived problem of conserving the public fisc. In an article by Milberg LP and Hausfeld LLP, “E-Discovery: The Fault Lies Not in Our Rules. . . .,” 4 Fed.Cts.L.Rev. 1 (2011), the authors argued that attorneys are failing to use Rules 1, 26(b)(2)(B), 26(b)(2)(C), 26(c), 26(f), and 26(g) as cost containment measures.

While there is no “silver bullet,” it appears that Rules-based solutions, transparency and cooperation provide viable tools to address at least many of the issues presented. The slide deck is available, Addressing Proportionality in Government E-discovery – IQPC, June 2011