The asymmetrical nature of discovery in class action lawsuits creates a time-consuming and costly problem for defendantsa problem compounded by the complex, high-volume nature of e-discovery. While such defendants may have millions of potentially relevant documents across multitudes of systems, plaintiffs usually have a much smaller discovery burden. Given this imbalance, defendants in class actions are often vulnerable to broad, costly discovery demands.
In one recent high-profile case, the defendant in a putative class action tried to protect itself by moving for a protective order limiting the scope of its preservation obligation or shifting the preservation cost to plaintiffs. In Pippins v. KPMG,1 a case discussed in this column, KPMG sought to limit its pre-class-certification preservation obligations with respect to thousands of hard drives. Although he recognized the “considerable expense” for KPMG, Magistrate Judge James L. Cott still ordered KPMG to preserve the hard drives pending class certification. In his Memorandum and Order, Judge Cott noted that KPMG had failed to demonstrate that the hard drives did not contain relevant information. Thus, KPMG did not establish “the absence of a duty to preserve the hard drives,”2 nor were any arguments under a proportionality test applicable at the time.3 District Judge Colleen McMahon later rejected KPMG’s motion to set aside Cott’s Memorandum and Order, stating that KPMG was “hoist on its own petard” because it failed to provide any indication of what information the hard drives contained.4
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