Class action litigation is often framed as a powerful tool for leveling the playing field between ordinary people and large corporations. Class actions were designed to allow people who might otherwise lack the resources to pursue claims individually, or whose claims do not make economic sense to pursue individually, to aggregate their claims and hold corporate actors accountable as a group (i.e., as a “class”). Yet beneath this idealized vision lies a structural inequity that has become increasingly pronounced in the modern digital age: the imbalance that electronic discovery (referred to as “e-discovery”) imposes on class action plaintiffs as compared to the corporations they sue. Even though both plaintiffs and defendants are subject to the same discovery obligations set forth in Rule 26 of the Federal Rules of Civil Procedure, in application the burden placed on consumer plaintiffs in class actions has become significantly disproportionate compared to that imposed on their corporate opponents.
What is E-Discovery?
E-discovery refers to the process of identifying, collecting, reviewing, and producing electronically stored information (ESI) relevant to a legal dispute. In any litigation, the parties are obligated to preserve all documents relevant to the litigation. This includes all electronic communications such as emails, text messages, communications sent through various third-party messaging apps, social media activity and messages sent on social media, browsing history, app usage data, and even metadata embedded in digital files.
As modern life has become significantly digitized, the scope of potentially discoverable ESI has expanded to near boundless extremes. Whereas in the pre-digital world, collecting documents relevant to litigation would entail simply pulling hardcopy documents from filing cabinets or physical storage, in the modern era, it requires collecting hundreds of thousands, or even millions, of digital documents per party to the litigation. This, in turn, has a tremendously unequal impact on class action plaintiffs.
Let’s Use a Hypothetical
To illustrate how this results in extreme inequity between the burden it imposes on individual-plaintiffs (and their counsel) compared to corporate defendants in a class action, let’s use a very common example of a typical class action lawsuit:
- A normal, ordinary consumer named John receives a random letter in the mail stating that a company he has never heard of before, ABC Inc., had his name, address, date of birth, and Social Security number stored on its systems, and that cybercriminals accessed those systems and obtained that sensitive information (commonly referred to as a “data breach”) and posted it on the dark web for other cybercriminals to misuse for identity theft and a broad array of fraud.
- John consults a class action law firm who has also been retained by nine other individuals who received the same letter, and the ten of them join together and are named as plaintiffs in a class action complaint against ABC Inc. asserting various claims against it for the data breach.
- Both Plaintiffs and ABC Inc. serve document requests on one another, seeking various categories of communications. ABC Inc.’s requests ask the ten plaintiffs to produce the following:
- All documents/communications relating to any prior instance of fraudulent or suspicious misuse of their sensitive information;
- All documents/communications relating to any prior data breaches in which their sensitive information may have been impacted;
- All documents/communications relating to any identity theft or credit monitoring service they have ever used; and
- All documents/communications about the data breach.
Both parties are subject to the same Federal Rules of Civil Procedure governing discovery, which requires them to collect all documents related to the litigation, and identify the documents within that universe that are responsive to their opponent’s discovery requests.
Large Corporations are Routine Litigants and have Endless Resources, Making E-Discovery a Cinch
For large corporations, while e-discovery can be costly and complex, it is a familiar and manageable undertaking. Corporations typically maintain centralized data systems, employ IT professionals, and retain outside counsel and vendors specializing in e-discovery. They have document retention policies, litigation hold procedures, and sophisticated tools for data collection and review. Importantly, these costs are often viewed as a routine part of doing business and can be spread across the organization.
Let’s use our hypothetical to demonstrate this point: for ABC Inc., the collection process is straightforward: it identifies its employees who dealt with the data breach (which is usually 3-7 employees), who all have email accounts provided by ABC Inc. such that every email they send or receive is housed on one, centralized email server maintained by ABC Inc. If ABC Inc. also uses centralized messaging apps such as Slack or Teams, the same applies to communications its employees send through those platforms. ABC Inc.’s lawyers simply collect those employees’ communications in one fell swoop, apply search terms to them, and produce the responsive documents therein.
That could not be further from the process imposed on John and the other nine plaintiffs in our hypothetical.
Corporate Defendant
CUSTODIANS TO COLLECT
3 to 7 employees
HOW COLLECTION HAPPENS
One centralized email server
Counsel collect every custodian’s messages in a single pass, apply search terms, and produce.
WHO ABSORBS THE COST
A routine cost of business
Spread across the organization, alongside in-house IT and retained e-discovery vendors.
Named Plaintiffs
10 Plaintiffs
No centralized server
A vendor ships a Remote Collection Kit to each plaintiff. Collections often run overnight, while the plaintiff sleeps.
Borne by plaintiffs’ counsel
Storage alone runs $4 to $15 per gigabyte, per month, before processing and privilege review.
$30,000
a month in storage, in the article’s example: 5 terabytes collected at $6 per gigabyte, per month. Paid by plaintiffs’ counsel, not by the corporation they sued.
How E-Discovery Standards Place a Disproportional Burden on Class Representatives in the Digital Age
By contrast, consumer plaintiffs are usually individuals with limited resources, little to no legal sophistication, and no prior experience with litigation. When they step into the role of named plaintiffs in a class action, they often do so with the expectation that their primary responsibility is to represent the interests of the class, not to become the subject of invasive scrutiny into their personal digital lives. However, the reality of e-discovery can be far more intrusive and burdensome than anticipated.
One of the most significant disparities lies in the scope and intrusiveness of discovery requests directed at plaintiffs. Defense counsel frequently seek expansive access to plaintiffs’ personal devices and accounts, arguing that such information is necessary to test the credibility of their claims, assess typicality and adequacy under class certification standards, or identify individualized issues that could defeat class treatment. Requests may include complete downloads of smartphones, tablets, laptops, personal devices, and social media accounts, or production of years’ worth of emails and text messages.
For an individual plaintiff, complying with such requests can be daunting, and for their counsel, it can be extremely burdensome when representing multiple plaintiffs. Unlike corporations, individuals do not maintain organized archives of their digital communications. Their data is scattered across devices, platforms, and accounts, often intermingled with highly personal information, medical records, financial data, private conversations, and more. The process of collecting and reviewing this data for production can be both technically challenging and emotionally taxing. And even when protective orders are available, they may not fully alleviate plaintiffs’ understandable concerns about privacy and misuse of sensitive information.
Notwithstanding these legitimate concerns (none of which are felt by corporate defendants, no less), consumer plaintiffs are nonetheless less likely to successfully assert such limitations because courts often view their data as more directly relevant to the claims at issue, particularly in cases involving data privacy, consumer behavior, reliance, or damages. As a result, plaintiffs are almost always compelled to produce extensive records with far fewer opportunities to narrow the scope than their corporate opponents.
This imbalance is especially pronounced in cases involving digital products or services, where the defendant corporation already possesses vast amounts of data about the plaintiff. For example, a technology company may have detailed logs of a user’s activity, preferences, and interactions with its platform. Despite this, defendants often still demand that plaintiffs produce their own records, creating redundancy and increasing the burden on individual plaintiffs. Despite that redundancy, however, courts very commonly order plaintiffs to produce records already in the defendant’s possession based on an oversimplified reasoning that those documents can be obtained by the plaintiffs and applicable discovery rules require litigants to produce responsive information within their “possession, custody, or control.” Fed. R. Civ. P. 26(a)(1)(A)(ii).
Let’s return to our above hypothetical, John v. ABC, Inc., to demonstrate this point: each of the ten plaintiffs are entirely separate individuals with separate lives and means of communicating. That means that unlike the corporate defendant they sued, there is no centralized server from which all of their emails and text messages can be pulled in one fell swoop. But they and their counsel are nonetheless held to the same e-discovery standards requiring that their emails and electronic communications/documents be collected for the litigation.
Because the plaintiffs are everyday ordinary consumers with little to no prior litigation experience, they do not know how to forensically collect their electronic documents/content, and are reliant on their counsel for assistance in doing so. As a result, the plaintiffs’ counsel have to engage a third-party vendor who specializes in forensically collecting all “electronically stored information” (referred to as “ESI”). The duration and level of invasiveness of doing so depends on the source that is collected. And the longer the collection, the more costly it is for the vendor to perform.
To collect ESI stored to cell phones, the vendor most commonly has to ship a computer to the plaintiff that is preloaded with collection software and cables for the plaintiff to hook their phone to that computer (referred to as a “Remote Collection Kit”), which will then download the entire contents of the phone. This same method is also used for tablets, laptops, and personal computers. In some instances, the plaintiff cannot use their phone for the entire duration of the collection, while in others the plaintiff can use the phone but cannot disconnect it from the Remote Collection Kit for the duration of the collection. Therefore, cell phone collections very commonly have to be scheduled for late at night so the collection can run while the plaintiff is asleep (and thus not using their phone). Such after-hours work ordinarily results in overtime billing from the collection vendor.
On top of the enormous frustration and inconvenience the collection causes, ordinary consumers are extremely uncomfortable with allowing a vendor whom they have never met to download the entire contents of their phones. Understandably so, as consumers’ phones and other devices contain their most personal, private, and sensitive content. What does this mean in actuality? When you mix the enormous inconvenience with the extreme unease and invasiveness the process entails, many class representatives get overwhelmed and decide they no longer want to participate in the lawsuit.
And … that is all part of defendants’ plan.
Defendants Exploit the Disproportionate Impact of E-Discovery to Cause Plaintiff Attrition
The strategic use of intrusive and burdensome e-discovery by defendants can also function as a deterrent to prospective class action plaintiffs. By signaling that participation in a class action will entail extremely invasive and time-consuming discovery obligations, corporations may discourage individuals from serving as named plaintiffs in class actions. Likewise, by serving discovery requests on class action plaintiffs that seek personal communications and require invasive and seemingly unrelenting probing into their personal lives, defendants can cause class action plaintiffs to tap out. This chilling effect undermines the very purpose of class actions, which depend on willing class representatives to advance collective claims. Defendants know this, and exploit this inequity as a litigation strategy to eliminate the plaintiffs who have sued them.
In addition, the costs associated with e-discovery can disproportionately affect plaintiffs’ counsel, particularly in smaller firms. While contingency fee arrangements allow consumers to pursue claims without upfront costs, the expenses of managing e-discovery—such as hiring vendors, storing the enormous amount of data collected, processing that data, and conducting privilege reviews—can strain resources of the class action law firms representing the plaintiffs.
Specifically, consumers’ personal email accounts and phones often contain hundreds of gigabytes, if not terabytes, of electronic data. When you multiply those figures by 10 or more plaintiffs like most class actions have, it is not uncommon for it to result in multiple terabytes of data that has to then be uploaded to an e-discovery document management software, where it can be reviewed for purposes of being produced in the litigation. The average cost of storing ESI on an e-discovery review platform ranges from $4-15 per gigabyte, per month. These costs can quickly become crippling. For instance, if collecting ESI in a class action results in the collection of 5 terabytes of data (which it often does) and it costs $6 per gigabyte per month to store it on an e-discovery platform, the total cost of storage would be $30,000 per month. And who pays for that? Plaintiffs’ counsel. The result: this exorbitant cost can influence litigation strategy, including decisions about which cases to pursue or how aggressively to litigate.
There Must be Something that Someone is Doing to Correct this…Right? Not so Much
Courts and legislatures have attempted to address some of these concerns through amendments to procedural rules emphasizing proportionality and cooperation in discovery. For instance, the Federal Rules of Civil Procedure were amended to highlight that discovery must be “proportional to the needs of the case,” considering factors such as the parties’ resources and the importance of the issues at stake. However, the application of these principles is inconsistent, and the inherent power imbalance between individuals and corporations often persists.
Some judges have taken a more active role in managing e-discovery to prevent abuse. They may limit the scope of requests, require phased discovery, or encourage the use of sampling techniques. In certain cases, courts have recognized the privacy interests of individual plaintiffs and imposed safeguards to protect sensitive information. These efforts, while commendable, are not uniform and depend heavily on judicial discretion.
Ultimately, the unequal demands of e-discovery in class actions reflect broader structural disparities in the legal system. While corporations are repeat players with vast litigation experience and virtually limitless resources, consumer plaintiffs are one-time participants navigating an unfamiliar and often intimidating process. Without meaningful safeguards, the discovery process can exacerbate these inequalities, placing undue strain on individuals who seek to assert their rights.
Addressing this issue requires a multifaceted approach. Courts must more rigorously enforce proportionality and remain vigilant against discovery tactics that serve primarily to burden or intimidate plaintiffs. Clearer guidelines on the permissible scope of discovery directed at individual plaintiffs could help ensure greater consistency and fairness. Additionally, mechanisms for cost-sharing or cost-shifting may be appropriate in cases where discovery demands impose significant burdens on individuals.
There is also a role for legislative and rulemaking bodies to consider reforms that account for the realities of modern digital life. As the volume and sensitivity of personal data continue to grow, the legal system must adapt to protect individuals from undue intrusion while preserving the integrity of the discovery process.
In conclusion, while e-discovery is an essential component of modern litigation, its current application in class action lawsuits often places disproportionate demands on consumer plaintiffs. This imbalance not only affects the individuals involved but also has broader implications for access to justice and the effectiveness of class actions as a key tool for corporate responsibility and accountability. Ensuring a more equitable approach to e-discovery is therefore critical to maintaining not only the legitimacy and fairness of the legal system in the digital age, but protecting American consumers at large from major corporations prioritizing capitalism and profits over the well-being of American consumers.