Once upon a time, it was widely believed that electronic discovery would streamline litigation, making it faster, easier, less burdensome, and less expensive. So, now that we are some years into the e-discovery experience, has the prediction come true? Sadly, not necessarily.
While it is true that it can be easier to retrieve information electronically by using search terms, rather than sending teams of associates into warehouses to rummage through boxes of documents, that is just the tip of the iceberg when considering the overall e-discovery effort. And even if vast quantities of electronic information can be brought up based on a simple search, that information had to be harvested at the front-end, and ultimately will need to be reviewed at the back-end.
The vast array of information that now is subject to discovery in the electronic age has grown exponentially. When I started out as a lawyer almost 30 years ago, the types of materials that were subject to discovery included formal memoranda, correspondence, and handwritten notes.
Now, not only are those materials still of interest, but parties also seek emails, text messages, Internet and social media posts, voicemail messages, Word documents, Excel spreadsheets, information stored on networks, backup tapes, laptops, PDAs, cell phones, and the list goes on and on.
Plainly, the scope of what must be considered within the universe of potentially discoverable information has grown significantly. And the task of rounding up such information can be Herculean. Not surprisingly, parties now not only need to pay their attorneys to spearhead e-discovery efforts, but they often need to engage specialized vendors. Moreover, companies that are subject to repeat litigation are hiring their own internal e-discovery coordinators.
On top of this, when litigation has occurred or is reasonably likely to be initiated, parties need to institute litigation holds so that discoverable information does not go missing. This too can be cumbersome for companies, given the many different ways that information is now stored electronically.
And if one side to a case believes that the other side has not properly preserved relevant electronic information, arguments of spoliation of evidence come to the surface. Indeed, spoliation fights have tended to dominate certain cases, almost pushing the merits of the litigation to the background.
It is not altogether uncommon for there to be a number of e-discovery disputes in litigation. Parties and their attorneys can fight about search terms, custodians, sources of information, methods of retrieval and production of electronic data, etc.
Also, it is important to start the e-discovery process essentially at the outset of litigation. And there are times that the price of e-discovery can actually outweigh the amount at stake in the litigation on the merits. That can “chill” the bringing of certain cases, and can heavily influence the settling of cases before e-discovery costs have escalated.
The world has gone electronic, so e-discovery obviously is here to stay. However, gone for now is the notion that e-discovery is cheap and easy.