Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the November 3, 2025, edition of the National Law Journal. © 2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Discovery in civil litigation is intended to give all parties fair access to the evidence necessary to litigate the claims and allow for the trial to proceed on a full record of all the relevant evidence. In practice, however, defendants often use discovery as a weapon to distract the court from their alleged wrongdoing and to impugn the motives of plaintiffs seeking accountability. This litigation strategy, often employed in class action litigation, takes two common forms: deflecting from their own discovery failures by turning discovery disputes into “both sides” problems; and undermining the perceived legitimacy of the claims themselves. The result is a distortion of the discovery process and a subtle but potent shift in how the litigation is framed in the eyes of the court.
One of the oldest tricks in the defense playbook is to attack the plaintiff in order to redirect the court’s attention away from the defendant. In complex litigation, where corporate defendants may control millions of documents—ranging from internal communications to regulatory submissions and product testing data—discovery productions may expose serious misconduct or negligence. To help keep this evidence in the dark, defendants often go on the offensive.
The strategy is simple: shift the narrative. Defendants make aggressive, often overbroad, discovery demands of plaintiffs—requests for entire medical histories, irrelevant tax records, whole social media archives, decades of employment records, or forensic images of entire computers or mobile devices. When plaintiffs resist these disproportionate demands or cannot perfectly comply, defendants argue that plaintiffs are the ones obstructing discovery. The objective isn’t necessarily to win these fights outright, but to create a procedural fog that distracts the court from the defendant’s own deficiencies and reframes the discovery landscape as one in which both sides are at fault.
In many cases, this can frustrate the court into treating discovery misconduct as mutual. Judges in class actions have limited resources and are often unable to devote those resources refereeing prolonged, granular discovery battles. When defendants inundate the docket with endless discovery letters and motions to compel, the cumulative effect is “both sides fatigue”: The court begins to view discovery disputes as nothing more than mutual intransigence. When a judge concludes, “Both parties are being unreasonable,” defendants neutralize scrutiny of their own discovery conduct. Even more frustrating, the court may respond by tightening deadlines for both sides, issuing reciprocal sanctions, or making broad, ineffective admonitions—all of which tends to generate more motion practice and discovery disagreement, and which ultimately fails to address the underlying asymmetry of the misconduct.
This plays to the defendants’ typical advantage in resources by forcing plaintiffs counsel to allocate their relatively limited resources to both advancing the merits of the case and responding to manufactured discovery battles. This imbalance not only slows litigation, but can subtly shape judicial perception. If one party appears polished and the other is constantly defending against discovery complaints, the optics alone can influence rulings on class certification, bellwether case selection, or even dispositive motions.
Beyond procedural maneuvering, defendants also attack the plaintiffs themselves by turning routine aspects of plaintiffs’ lives into supposed “evidence” of unreliability. For example, defendants may:
- Comb through social media posts, browser histories, medical and tax records, and email and text communications for anything that can be taken out of context;
- Identify other suits where plaintiffs have served as class representatives in an effort to portray plaintiffs as “frequent fliers” whose claims should be viewed with suspicion; or
- Request discovery into how plaintiffs came to know about their claims in an effort to portray the case as “lawyer-led,” painting the plaintiffs as hapless, unknowledgeable, and incapable of leading the case.
Even when these accusations are baseless, their mere assertion can shift perceptions. Judges and mediators are human, and most are predisposed to assume that litigants, and their counsel, are acting in good faith. If they repeatedly hear that “plaintiffs are withholding information,” “plaintiffs are not cooperating,” or “plaintiffs are not serious about their claims,” these allegations can give them pause.
When these tactics succeed, it is because the litigation structure itself often enables them. Defendants typically control the bulk of relevant information: internal documents, research, testing, compliance records, and communications. Plaintiffs, by contrast, are often required to provide personal and individualized records, which are inherently incomplete or less formalized. In addition, Rule 26 requires proportionality of discovery between the parties, rather than permitting discovery that is proportional to the needs of the case. Defendants use their production of thousands, if not millions, more pages of documents than the plaintiffs to support invasive, overbroad discovery into the plaintiffs’ lives—despite the fact that the majority of documents produced by the defendants may not actually be helpful or relevant.
The damage these tactics inflict extends well beyond discovery itself. A judge frustrated by perceived “plaintiff noncompliance” may be less inclined to grant discovery sanctions against defendants or to view defense delays critically. If plaintiffs are viewed as disorganized or unreliable, defendants may perceive less settlement risk, leading to lower offers and harder negotiations. When plaintiffs are aggressively targeted in discovery, it can feel invasive and intimidating, leading some to disengage or abandon their claims altogether. Ultimately, if defendants can make plaintiffs look like the problem, they’ve already scored a strategic win—before trial, before class certification, and sometimes before meaningful discovery of the defendant’s own conduct has even begun.
Fortunately, Rules 26 and 37 of the Federal Rules of Civil Procedure provide clear frameworks for addressing abusive or bad-faith discovery practices. Rule 26(b)(1) emphasizes proportionality, limiting discovery to what is relevant and proportional to the needs of the case. Rule 26(g) requires attorneys to certify that their discovery requests are not interposed for improper purposes. Rule 37 empowers courts to impose sanctions for failure to comply with discovery obligations.
Plaintiffs must be willing and properly prepared, however, to move under these rules. Because courts are often unable, or unwilling, to referee the early skirmishes in discovery disputes, plaintiffs attorneys must engage in a steady creation of a sound record that shows defendants’ attempts to distract, obfuscate, delay, and misdirect. Creating this record is vital for engaging the court in an honest and candid conversation about how discovery should be conducted, and how defendants may have tried to frustrate that purpose.
The discovery process is supposed to illuminate the facts, not distort them. When they encounter these defense tactics, plaintiffs attorneys have the opportunity to refocus the court’s attention on discovery’s true purpose: to ensure that the parties, and the court, hear a cause on a fulsome record. Deliberate litigation strategies aimed at shifting power, perception, and pace toward the defendants have no place in our system. And while it is on plaintiffs counsel to meet defendants’ abusive tactics, the courts must also be willing to push back, using the tools the rules already provide.
Thankfully, judicial skepticism toward overbroad or invasive requests of plaintiffs appears to be increasing. Courts now routinely reject attempts to compel unrestricted access to plaintiffs’ social media profiles, browser histories, and hard drives, and frequently restrict access to unrelated medical records or financial information. See, e.g., Cherry v. Walkin Billboard, No. 1:17-CV-3714-LMM-JKL, 2018 WL 11483095, at *3 (N.D. Ga. Sept. 28, 2018) (denying request for the plaintiff’s entire Facebook data and holding that “a party is no more entitled to such unfettered access to an opponent’s social networking communications than it is to rummage through the desk drawers and closets in his opponent’s home”) (cleaned up and quotations omitted); McArdle v. City of Ocala, 451 F. Supp. 1304. 1313 (M.D. Fla. 2020) (denying request for 10 years of plaintiffs’ medical records in light of “the burden of the proposed discovery and the privacy concerns of plaintiffs”). These decisions reflect a growing awareness of how defendants weaponize discovery to shift narratives rather than uncover facts. The question is what happens next.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at alevitt@dicellolevitt.com. Thank you to DiCello Levitt senior counsel James Ulwick for contributing to this column.
