Understanding E-Discovery

Rebecca Love Kourlis

7/21/2008 4:15:46 PM - Rebecca Love Kourlis

More than 99% of the world’s information is currently created electronically, and nearly every piece of electronically stored information (ESI) is potentially discoverable in a civil lawsuit.  In an average case today, the process of exchanging ESI with an opposing party (known generally as electronic discovery or “e-discovery”) can mean processing, reviewing and producing potentially millions of pages of electronic documents.  According to one estimate, a “midsize” lawsuit is now expected to generate between $2.5 and $3.5 million in e-discovery costs alone.  E-discovery, according to one commentator, “represents the greatest sea change in the practice of law in recent memory.” 

Businesses can be whipsawed by e-discovery if they do not have a good handle on their data collection systems.  The Institute for the Advancement of the American Legal System (IAALS), a think tank at the University of Denver dedicated to improving the civil justice system, today released a publication aimed at helping small businesses plan and prepare for e-discovery.  It is called The Emerging Challenge of Electronic Discovery: Strategies for American Businesses.  Larger businesses typically have legal and IT services available in-house to help guide and prepare them for a potential e-discovery onslaught.  Small businesses, however, rarely have immediate access to such resources.  Strategies offers practical guidance to help businesses begin their e-discovery planning and preparation now, in the hope of avoiding later court battles over ESI.  No matter how much you hope to avoid going to court, waiting to prepare for e-discovery until after a lawsuit begins is too late.

The civil justice system is trying to cope with e-discovery.  New amendments to the Federal Rules of Civil Procedure specifically dealing with e-discovery became effective in December 2006.  But serious questions remain.  Have the new rules streamlined document collection and production?  Are the judges comfortable with e-discovery issues and do they recognize the potential economic impact?  Are the attorneys prepared to deal with e-discovery, and to keep the costs proportional to the dispute?  And what about the e-discovery industry that has cropped up to help litigants manage and produce their data?  How much do e-discovery vendors cost, and are they worth the investment?

Today, IAALS also released publication entitled Electronic Discovery: A View from the Front Lines, which provides a snapshot of the world of e-discovery 18 months after the new Federal Rules went into effect.  Drawing from interviews and the expertise of more than 20 “virtual advisors,” including federal judges, trial lawyers, business leaders and IT professionals, Front Lines offers a real-time analysis of the challenges that litigants and potential litigants face in this new environment.  Front Lines examines how the unsettled state of e-discovery law has made it hard for businesses and others to prepare for e-discovery and how under-preparation can lead to expensive, damaging mistakes that cause lawsuits to be decided on technicalities, rather than on their merits.  Front Lines also reports on the expense of e-discovery as well as the fear and confusion it has caused among the business and legal communities: fear and confusion that has led to vicious spending cycles and sharp litigation tactics.  Front Lines concludes with a call to action and asks everyone to consider whether we will deem the costs and effects of e-discovery to be acceptable long-term, or whether instead we will recognize e-discovery as the latest and most obvious symptom of a civil justice system that has become too costly, time-consuming and difficult to navigate for most litigants.

Both publications are now available for download on the IAALS website: www.du.edu/legalinstitute/.

Justice Kourlis will be speaking about e-discovery at the Institute for Legal Reform’s “Drowning in Documents” conference on July 30th. The conference will explore the explosion of discovery and its impact on the fairness and efficiency of American courts. Registration is now open for the morning discovery conference or the employment litigation event that afternoon.