For many, initial disclosures are a routine part of discovery. Though not necessarily "sexy" and done at a preliminary phase of the case, these disclosures can and do have important consequences on how a case may proceed through discovery and, ultimately, to trial.
Last month, a federal district court in Washington addressed the issue of how these disclosures can have drastic implications on a party's potentially costly e-discovery obligations. In Johnson v. Allstate Property and Casualty Insurance Company (2014 WL 7377198), the defendant Allstate served initial disclosures identifying 38 potential witnesses as having relevant information. Notably, no details were given as to the types of information these individuals possessed. After receiving electronic documents from four of these individuals, the plaintiff requested a similar search and production for the remaining 34. The defendant resisted, claiming that this would result in a costly, unduly burdensome "fishing expedition," but provided no further information about why this was the case.
In deciding the dispute, the court emphasized the lack of information that had been provided by the defendant about the individuals identified in the disclosures. Although the court ordered that the defendant provide more detail about the particularized information possessed by each individual, it ultimately empowered the plaintiff to make the call as to which custodians' electronic documents were to be searched in light of that updated information. Thus, while the defendant was not immediately ordered to search and produce all ESI (with the exception of one custodian, for whom the court ordered that searching and production move forward), it was essentially left to the mercy of the plaintiff (with the court's presumed continued oversight), losing a measure of control over the process.
The lesson here is simple – do not withhold critical information that can potentially bolster your ability to resist costly e-discovery. According to the court, the defendant (a) failed to provide sufficient information about the information in the possession of the individuals identified in its initial disclosures, and (b) did not sufficiently justify its claims of undue burden and expense. Had this information been provided, the defendant may have had a much stronger argument to resist certain e-discovery from the outset.
One other interesting thing to note is that the court clearly expected Allstate to act expeditiously in light of its resistance to e-discovery. It gave Allstate nine days to provide updated information about the identified individuals and search and produce the emails of one custodian (which time period ran through New Year's Eve), and then gave it just 11 days to search and produce the email of any other custodians identified by the plaintiffs in light of the updated disclosures. Such a shortened timeframe could be challenging depending on the number of custodians and amount of data involved.
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