From the "if you wrote it down, it's probably discoverable" department comes a ruling from Judge Edward Chen of the U.S. District Court for the Northern District of California. In September, Chen allowed part of a lawsuit to move forward claiming that Uber's "gratuity" charges are misleading because all of the gratuity doesn't go the driver.
Uber CEO Travis Kalanick fought against disclosing some damning emails, but an order by Chen affirmed the ruling of a magistrate judge ordering their disclosure.
21,000 Emails? That's Nothing
On November 26, Magistrate Judge Donna Ryu said that Uber had to disclose emails discussing gratuity. Uber tried to argue that it had supplied emails from five other executives containing the words "taxi" and "gratuity," and that should be enough. Ryu said that there was no reason emails from Kalanick and two other executives shouldn't be included in discovery.
In appealing the decision to Chen, Uber argued that producing more emails would be an "improper burden" and that it shouldn't have to turn over any more emails. Chen didn't think so: "That Judge Ryu's order may require defendant to review approximately 21,000 documents does not represent an improper burden given the potential role of defendant's CEO and vice president of operations in defendant's challenged conduct."
Efficient Electronic Discovery: Use It or Lose It
FRCP 26(b)(2) requires parties to disclose electronic information unless it's "not reasonably accessible because of undue burden or cost." Companies that don't want to disclose documents routinely resort to this provision, but the problem is that, as electronic discovery tools get better and better, the ability to make a Rule 26(b)(2) objection gets more and more tenuous.
In 2010, Milberg, LLP and Hausfield, LLP wrote a paper for the Advisory Committee on the Rules' Conference on Civil Litigation. Trial lawyer groups were particularly vocal in urging for a change to the Federal Rules making cost of discovery a motivating factor in granting an exemption under Rule 26(b)(2), claiming that the costs of electronic discovery were too high.
The paper, however, observed that the median cost of discovery in cases reported by a Federal Judicial Center survey was just $15,000 for plaintiffs and $20,000 for defendants. "[E]ven in the highest value cases, discovery costs still amounted to less than 10% of the damages sought."
There's an uneasy tension between plaintiffs and the court system, which want the most discovery for the least cost. On the other side are defendants, who want to provide the least discovery they can. As discovery tools get better and better, defendants will lose the ability to claim that providing huge volumes of electronic documents is too costly. Indeed, the paper suggests that failing to have a modern, efficient ESI storage and indexing system that makes electronic document production cheap and easy is a no-no.