I previously reported in my post on March 13th about a joint report issued by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System on the burdens of electronic discovery under the current rules. If you haven't seen it yet, the Defense Research Institute (DRI) issued a report entitled "Future of Litigation" in January 2009 that, among other things, confirmed similar concerns among defense lawyers and some judges.
According to the report, many of the survey respondents and interviewees "pointed to e-discovery as a major factor further driving up the cost of litigation." Report at 3.
Interviewees agreed overwhelmingly that e-discovery is having and will have a profound impact on the future of litigation (using terms like “horrible” and “outrageous” to express their concern). Likewise, an overwhelming majority believe that it will be incumbent on judges to bring e-discovery under control – via effective rule enforcement; limiting “fishing expeditions;” imposing meaningful sanctions for abuse; and providing sufficient guidance to both parties regarding appropriate document production (and related processes).
Id.
Survey respondents focused on two separate aspects of e-discovery costs that cause concern.
First, many are simply concerned that in an attempt to create fast, efficient discovery by requiring production of documents in electronic formats, the process has increased the volume of documents being produced resulting in inordinate costs of production and excessive time to conduct document reviews. Second, many lawyers are concerned that e-discovery requests and some rulings are imposing unreasonable continuing costs on clients by forcing long term document retention that adds costs on a defensive basis.
Id. at 4. The report observed that some defense practitioners "are concerned that text retrieval technologies are encouraging plaintiffs to use discovery as an end rather than a means (e.g., to fight over discovery issues rather than focus on the merits of the case)." Id. "Specifically, many are concerned that e-discovery encourages a search for “needles in a haystack” – particularly as it relates to searching for documents that influence determination of punitive damages, but are not central to the merits of the litigation per se. Some representative quotes can illustrate this concern." Id.
Those who are involved in electronic discovery in large cases undoubtedly have first-hand experience with some of those same concerns. Add this report to the growing list of publications that have addressed some of the real costs posed by the e-discovery rules.
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