Reducing Litigation Costs: Random Sampling as a Cost-saving Lawsuit Discovery Technique

Chris Hanslik, Kasi Chadwick

June 5, 2017

Typically, discovery is the most expensive activity in a lawsuit. Lawyers and litigants are constantly searching for ways to reduce discovery costs. For example, common cost-saving discovery techniques include performing electronic forensic examinations of target electronic devices using electronic document-processing tools, and employing outside contract lawyers for document review.

However, a federal court in Kansas recently allowed for a non-traditional, cost-saving discovery technique requiring that the defendant only produce a random sample of documents instead of all documents responsive to the plaintiff’s discovery requests.

In Megen Duffy v. Lawrence Memorial Hospital, the discovery dispute involved four requests for production of materials that the plaintiff contended were only partially complied with by the defendant. After the court granted the plaintiff’s motion to compel the production of documents responsive to these four requests, the defendant realized the enormity of the task to comply. The four requests for production ultimately called for the review of thousands of non-searchable patient records containing medical information belonging to non-parties. Upon this realization, the defendant then moved for a protective order limiting its discovery obligations.

In support of its motion for protection, the defendant submitted an affidavit outlining the defendant’s cost for compliance. Specifically, because the electronic patient records in question had not been organized in the normal course of the defendant’s business, the documents requested required manual review, and the defendant estimated compliance to cost more than $200,000.

Instead, the defendant proposed limiting the required production to a random sampling of 257 responsive, patient records. Using RAT-STATS, a sample tool espoused by the United States Department of Health and Human Services Office of Inspector General, the defendant arrived at a proposed sample size for production. The plaintiff opposed the defendant’s motion for protection on a number of technical grounds, but did not challenge the proposed sampling methods.

Ultimately, considering the discovery burden and the defendant’s proposed solution, the court granted the protective order allowing the defendant to produce random samples instead of the entirety of the documents requested by the plaintiff.

As a general rule, courts are highly practical in settling discovery disputes, but it is not atypical for a court to require the defendant’s strict compliance with discovery requests regardless of the circumstances or production burden. While courts will sometimes allow for cost-shifting if the responding party’s production burden is abnormally high, typically, courts require that all responsive documents be produced.

For now, at least in the case of large-volume document productions, this may be the advent of random-sample productions for responding parties.