Case law on nonparty cost shifting has been slow to develop, but a few lessons are available. Take, for example, the doctrine of mutually assured destruction, which led to a half-century of uneasy standoff between the United States and the former Soviet Union during the Cold War. The doctrine also has a moderating influence on the scope of parties’ electronic discovery — at least in cases between large corporate entities.
A party that opts to request extensive and invasive mining of electronic data is likely to receive a similarly extensive and invasive request in return. This deterrent effect is absent, however, in discovery requests made to nonparties. As one widely cited opinion, Linder v. Calero-Portocarrero, [FOOTNOTE 1] on nonparty discovery put it: “When nonparties are forced to pay the costs of discovery, the requesting party has no incentive to deter it from engaging in fishing expeditions for marginally relevant material.”
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