E-Discovery Update: No More Fishing Allowed!

No More Fishing Allowed!

September 6, 2016

Mark Twain warned, “Do not tell fish stories where the people know you; but particularly, don’t tell them where they know the fish.” Litigants should heed this advice, as courts are proving to be less tolerant of discovery tales of the fish that got away. In Dwoskin v. Bank of America, No. CCB-11-1109, 2006 WL 3955932, at *2 (Md. July 22, 2016), the court denied a request for such a fishing expedition, noting that plaintiffs were not able to point to any evidence that “additional discovery would contradict the evidence already produced.”

The Dwoskin court disagreed with plaintiffs’ contention that summary judgment was prematurely granted and denied their request for additional depositions because they felt defendant’s Rule 30(b)(6) deposition testimony did not “adequately address several important questions” in the case. The court noted its “duty to limit discovery” where the discovery is unreasonably cumulative or duplicative, where there has already been ample opportunity to obtain the information sought, or where the discovery is not proportional to the needs of the case. Finding both that ample discovery had already been taken and that additional discovery was not proportional to the needs of the case under Rule 26, the court denied plaintiffs’ motion to reconsider the summary judgment ruling in defendant’s favor. The court also noted the overwhelming evidence supporting the defendant’s position in the case.

For cases where a litigant has had ample opportunity in discovery and additional discovery is not proportional to the needs of the case, the amendments to the Federal Rules have pushed courts to be less tolerant of fishing expeditions. When the mythical big fish is merely a myth, the Federal Rules have placed limits on chasing after it at someone else’s expense.