The Weaponization of eDiscovery: A Two-Part Blog (Part 2)

The Defense against eDiscovery Weaponization

In today’s high-stakes litigation, eDiscovery is too often used not to uncover facts, but to exhaust, overwhelm, and distract. In Part 1 of this series, we explored how the discovery process has been distorted into a weapon of attrition. Now, we turn our focus to defense. How can legal teams push back against procedural tactics and keep the focus on the merits?

Below are four core strategies to counter the “Four D” tactics¹ of eDiscovery abuse — and reclaim control of the litigation process.

Strategy 1: Establish Early Case Control

The first 100 days of a matter can define the entire case. Swift, strategic early case reconnaissance is the best defense against delay tactics and discovery gamesmanship. It’s not just about getting a head start — it’s about gaining precise intelligence on the key custodians and data that matter most. This requires more than just a cursory list for preservation purposes.

By digging in right away, legal teams can chart a clear, defensible path through discovery. Early metrics allow you to:

1. • Evaluate the fact pattern
2. • Rank and prioritize custodians and data sources
3. • Prepare for negotiations
4. • Pinpoint key evidence
5. • Anticipate motion practice related to scope and format

Early engagement is your first line of defense — turn insight into advantage before the battle begins.

Strategy 2: Use Technology to Cut Through the Noise

As discussed in Part 1, abusive tactics often rely on data volume as a weapon. But with the right strategy and resources, you can flip the script.

Leverage advanced tools, such as:

1. • Narrative analysis search strategy — identifies fact patterns and uncovers relevant content faster than traditional keyword searches.
2. • Index-in-place technology — helps rapidly assess and collect more targeted data.
3. • Advanced analytics — quickly pinpoints what’s really important to the case at hand.
4. • Discovery scoping technology — drives more informed decision-making prior to collection and supports settle versus proceed decisions, discovery scoping and budgeting in collaboration with in-house and outside counsel, and Meet and Confer negotiations.
5. • AI assisted review — detects meaningful trends and dramatically reduces review volumes and time.

These solutions reduce data volumes, prioritize what matters, and help you respond with speed and precision. But remember, tech alone isn’t enough — effective processes and skilled professionals are essential to drive results.

Strategy 3: Leverage Proportionality as a Shield

Overbroad requests and intentional delays are common eDiscovery tactics. Push back using proportionality requirements — such as Rule 26(b)(1) of the Federal Rules of Civil Procedure — that have granted litigators a permission slip to insist on proportionality in discovery.

Courts increasingly support:

1. • Reasonable limits on scope
2. • Collaborative narrowing of disputes
3. • Sanctions for overreach or bad faith

Use this momentum to your advantage. Proportionality isn’t a suggestion — it’s a mandate.

Strategy 4: Bring in Expert Reinforcements

Discovery abuse is rising — but you don’t have to fight the battle alone. The right experts can spot manipulation, respond with agility, and keep your case on track.

Experienced consultants and technologists provide:

1. • Guidance on ESI protocols and production formats
2. • Strategic input on motion practice
3. • Affidavit and 30(b)(6) prep support
4. • Tailored workflows that minimize risk and delay

The best way to win an eDiscovery battle is to prevent it from escalating. Preparation isn’t optional — it’s your strongest defense.

Leveling the Field with Prism Litigation Technology

Not every firm or legal department has a dedicated litigation support team — but that doesn’t mean you have to be outgunned.

Prism Litigation Technology partners with legal teams to counter discovery abuse with:

1. • Proactive eDiscovery Consulting — strategy, ESI protocols, and early issue spotting
2. • Client-Customized Technology — filter, prioritize, and produce defensible data at reduced cost
3. • Optimized Workflows — scalable processes that focus on relevance, efficiency, and risk reduction
4. • Expert Dispute Support — from strategy to sworn declarations

When you work with Prism, you fight smarter — not harder. Turn eDiscovery from a threat into a tactical advantage.

Fighting Back with Strategy and Strength

eDiscovery doesn’t have to be a battleground. With the right strategy, team, and technology, you can disarm even the most aggressive discovery tactics — and shift the focus back where it belongs: on the merits of the case.

Connect with Prism to start building your discovery defense plan today.

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¹ As discussed in Part 1 — Dogfights, Document dumps, Discovery on discovery, Dodgeball.