Part 1: Why Discovery Gets Out of Control
Like it or not, discovery has become one of the defining factors in complex litigation.
In class actions, multidistrict litigation (MDLs), mass torts, regulatory investigations, and other high stakes matters, success is no longer determined solely by legal strategy. Discovery often becomes its own parallel workstream — one that grows and changes alongside the litigation itself, requiring constant coordination among attorneys, clients, litigation support teams, and vendors.
Without the right processes in place, discovery can quickly become difficult to control. Attorneys spend less time advancing the case and more time responding to expanding obligations, repeated work, and unexpected issues. Even the strongest litigation teams can find themselves reacting instead of leading.
In Part 1 of this article, we’ll explore why discovery becomes so difficult to control in complex litigation and what happens when it does. In Part 2, we’ll examine the practices that help litigation teams bring structure, visibility, and repeatability to even the most demanding matters.
How Discovery Slips Out of Control
Most litigation follows a relatively predictable path. A matter is filed, relevant custodians are identified, data is collected, documents are reviewed, and productions are made.
Complex litigation turns discovery into a moving target.
Class actions, MDLs, mass torts, and other large-scale disputes are not simply larger versions of ordinary cases, they are constantly evolving. Allegations expand. New plaintiffs appear. Discovery requests change. Related matters emerge. What begins as a single lawsuit can quickly become an interconnected web of preservation obligations, collections, reviews, productions, and strategic decisions that unfold over months or even years.
Discovery rarely spins out of control because of one big event. It happens because every new custodian, every expanded allegation, every additional data source, and every related matter adds another layer of complexity until the process itself becomes difficult to manage.
Discovery becomes harder to control as this complexity grows. The pressure builds through a series of recurring challenges that compound over time:
- Discovery Scope Doesn’t Stay Put
Complex litigation rarely stays within the boundaries of the original complaint. What begins as a focused dispute often expands to encompass additional business units, product lines, decision-makers, policies, time periods, and communication channels. Every expansion broadens the universe of potentially relevant information, making it increasingly difficult to maintain a clear understanding of what has been preserved, collected, reviewed, and produced. - A Constantly Shifting Custodian Landscape
The original custodian list is almost never the final one. Depositions uncover new decision-makers. Organizational changes introduce different stakeholders. New allegations pull additional employees into scope. Every new custodian triggers a chain reaction — legal holds, interviews, data mapping, preservation decisions, collections, and review. Without a disciplined process, teams quickly find themselves repeating work instead of building on it. - Multi-Party Coordination and Competing Agendas
Complex litigation rarely involves just one plaintiff and one defendant. Class actions often include multiple defendants, plaintiffs’ counsel, experts, and sometimes regulators, each with different priorities and competing discovery objectives. In MDLs, plaintiff steering committees, liaison counsel, bellwether trial schedules, and coordinated proceedings add even more layers of complexity. Meet-and-confers become more difficult, discovery disputes take longer to resolve, and keeping everyone aligned becomes a significant operational challenge. - Expanding Scope Meets Fixed Deadlines
One of the greatest tensions in complex litigation is that discovery obligations continue to expand while court deadlines remain. New custodians, additional data sources, and evolving discovery requests must be incorporated into an already active schedule. Litigation teams are forced to absorb expanding work without additional time, creating constant pressure to move faster while maintaining accuracy and defensibility. - Preservation Becomes a Moving Target
Preservation is not a one-time event in complex litigation. Legal holds must be updated, new custodians added, additional systems identified, and changing business environments monitored throughout the life of the case. As matters stretch across several years, maintaining defensible preservation becomes an ongoing operational responsibility that demands continuous oversight rather than periodic attention. - Review Becomes the Budget Wildcard
Review is often where discovery costs accelerate most quickly — not because of a single large collection, but because the same process is repeated over and over again. New custodians generate new collections. Expanded allegations introduce additional data. Related matters require fresh review. Without a strategic approach, review populations continue to grow, driving costs higher with each iteration. - Every Discovery Decision Must Stand Up to Scrutiny
Courts increasingly expect discovery to be both reasonable and explainable. It’s no longer enough to say data was collected and produced. Attorneys may be asked to explain why certain custodians were selected, how search terms were developed, why particular data sources were included or excluded, and what process was followed as the case evolved. When those decisions aren’t documented as they happen, reconstructing them months (or years) later becomes both difficult and risky. - One Matter Has a Way of Becoming Many
Complex disputes rarely stay confined to a single case. A class action may trigger shareholder litigation, regulatory investigations, state court actions, or additional lawsuits built on the same underlying facts. Without a centralized approach, teams often find themselves recreating work they’ve already done instead of leveraging it across related matters.
The common thread is simple: discovery complexity grows faster than most teams expect. Left unmanaged, what begins as an organized process can gradually become a reactive one.
The Risk Isn’t Just Cost — It’s Losing Control
When corporate clients talk about discovery, the conversation often begins with cost.
Experienced litigators know the bigger concern is control.
As matters evolve, critical information becomes scattered across email threads, spreadsheets, vendor reports, shared drives, and individual team members. Decisions that seemed straightforward six months earlier become difficult to reconstruct. Institutional knowledge resides with a handful of people instead of the matter itself.
Over time, attorneys find themselves asking questions they should be able to answer immediately:
-
- Why was this custodian not placed on litigation hold 2 years ago?
-
- What data sources were preserved and when?
-
- Why did we not collect email from these priority custodians?
-
- Where is the documentation regarding this departed employee’s data?
-
- If the court asks us to explain the process tomorrow, can we confidently do it?
The longer a matter continues, the more difficult those answers become if discovery decisions are not documented and managed consistently.
This challenge is compounded by another reality of complex litigation: the cases often outlast the teams managing them. Attorneys change roles. Litigation support professionals move on. Vendors change. Without a centralized, defensible record of discovery activity, valuable institutional knowledge disappears with them.
More importantly, the legal risk grows.
Discovery missteps can lead to expensive motion practice, adverse inference arguments, sanctions, reputational damage, malpractice exposure, and strained client relationships. Even when those outcomes never materialize, clients notice when discovery becomes reactive, budgets become unpredictable, or simple questions take days to answer.
Control Doesn’t Happen by Accident
If discovery becomes more complex every month, then keeping it under control cannot depend on individual attorneys remembering prior decisions, disconnected spreadsheets, or ad hoc processes that change with every new development.
The litigation teams that consistently handle complex matters well approach discovery differently.
They assume the case will evolve. They expect new custodians to emerge, additional data sources to become relevant, and related matters to develop. Rather than rebuilding their discovery approach every time the litigation changes, they establish a repeatable framework that evolves with the case.
In Part 2 of this series, we’ll explore the practical strategies that leading litigation teams use, and how the right combination of expertise, process, and technology can help legal teams focus on winning the case instead of managing discovery chaos.