Yesterday, we looked at the cert. petition recently filed in Hoosier Racing Tire Corp. v. Race Tires America, Inc., which presents the Supreme Court with the opportunity to resolve an important conflict among the federal courts over the scope of recoverable costs associated with the production of electronic documents during discovery. Earlier this week, Carey Busen of Baker Hostetler wrote a piece for the Discovery Advocate blog asking, “Will SCOTUS Weigh In on the Taxation of e-Discovery Costs?”
In deciding whether to "weigh in on" any one of the 8,000+ cases seeking a spot on the Court's shrinking plenary docket each term, the Court follows a tradition whereby it will deny certiorari unless at least four justices vote to grant. While the justices maintain a shroud of secrecy around their criteria for deciding which cases to decide on the merits, Court watchers have detected a variety of factors on which the justices and their law clerks rely to quickly screen the cases that present important, pressing questions of federal law from the remaining 99% of cert. petitions seeking review.
As I mentioned above, Hoosier Racing Tire Corp. presents the Supreme Court with the opportunity to resolve a circuit split. But the justices have long since given up trying to decide every case presenting a conflict of law, preferring instead to hear only those cases which the justices feel present important conflicts of federal law. More on that later.
As a rule of thumb, the Court will typically deny certiorari in a conflict case unless the justices have the benefit of at least three prior circuit court decisions that squarely address the question presented to the Court. Recent decisions addressing the scope of recoverable e-discovery costs issued by the Third, Fifth, Seventh, and Federal Circuits, respectively, suggest that this issue has had sufficient time to "percolate" in the lower courts.
The issue presented in Hoosier Racing Tire Corp. is also important because its resolution by the Court would have a widespread effect on the legal system. As the petitioners point out, "The issue of who will bear costs associated with electronic discovery is faced by nearly every litigant in every lawsuit, and controlling the costs of electronic discovery has become an important aspect of any litigation strategy." Petition for a Writ of Certiorari, Hoosier Racing Tire Corp. v. Race Tires Am., No. 11-1520, at 6 (June 14, 2012) (PDF). Cases involving procedural provisions like the one at issue in Hoosier Racing Tire Corp. are also strong candidates for certiorari because they invoke the Court's institutional obligation to ensure the uniform application of federal procedure.
Moreover, while the Court is not receptive to cert. petitions arguing only that the lower court's decision was erroneous, the petitioners in Hoosier Racing Tire Corp. appropriately butress the other arguments for certiorari with a discussion of the merits. Specifically, the petitioners argue that the Third Circuit's construction of the Costs Statute is inconsistent with both the plain meaning of the statutory text (presumably catering to Justice Scalia's taste for textualism) and its legislative intent (appealing to Justice Breyer's desire to divine congressional intent from the legislative record). Because the Supreme Court reverses roughly 65%-70% of the cases it agrees to hear, the brief arguments addressing the merits of the Third Circuit's decision may strike a chord with one or more of the justices on the fence.
And finally, the likelihood that the Supreme Court will agree to review Hoosier Racing Tire Corp. will increase significantly if one or more "friends of the court" file amicus briefs elaborating on the practical implications of the issue's resolution. Under Supreme Court Rule 37, amicus briefs must "be filed within 30 days after the case is placed on the docket or a response is called for by the Court, whichever is later . . . ." While the court's docket does not reflect any amicus activity in this case yet, vendors peddling e-discovery services to corporate litigants have a strong incentive to file an amicus brief urging the Court to grant certiorari. A corporate litigant's decision to hire an outside vendor to compile, process, and code its electronic documents largely turns on whether the company is confident that it will be able to recover the costs if it prevails without having to suffer through prolonged litigation over the recoverable amount. For an industry that reportedly made "revenues equaling approximately $2.8 billion in 2009," e-vendors that wish to see the Third Circuit's decision in Hoosier Racing Tire Corp. overturned have a strong incentive to invest in an amicus brief (or two or three).
Are there any additional reasons why the Court should or should not grant cert. in this case? I encourage readers to share their thoughts in the comment box below.
[*Hat tip to Gil Keteltas.]