Discovery Resources

by Dennis Kiker, Esq., Director, Professional Services, Fios, Inc.

I’ve often heard colleagues ask prospective clients, “What keeps you up at night?”  Or, “What worries you about e-discovery?”  After all, that is what we, as vendors, want to know: how can our products or services ease your concerns, so that you’ll purchase our products or services.  Thus, it was very interesting to hear, in U.S. District Judge Lee Rosenthal’s keynote address at the Georgetown Advanced E-Discovery Institute that the circle of those wandering through the e-discovery woods watching for ESI monsters might be smaller than we think.

Much of Judge Rosenthal’s talk reviewed the results of a Federal Judicial Center draft report on a survey of attorneys with federal cases that terminated in Q4’08.  That report contains all sorts of surprises for those concerned that the costs of civil litigation were escalating wildly out of control due to the mounting burden of e-discovery.  Not so, according to most of the lawyers surveyed, reports Judge Rosenthal  (By the way, if you are having trouble sleeping tonight, you can read the full 191 page report).

Apparently, over 70% of the attorneys in cases involving ESI reported having no problems with discovery whatsoever.  Disputes over ESI occurred in less than 2% of those cases, and most of those involved disputes about the form of production..  Although the report states that cases involving ESI were  more expensive than cases without ESI, the differences were surprisingly small.  Moreover, in settled cases, 60-70% of the attorneys, both plaintiff and defense, reported that the cost of e-discovery had no bearing on the settlement.  (Of course, that means that 30-40% of the time, e-discovery did influence settlement.  Got to love statistics.)  The general trend of the responses is in surprising contrast to the results of the joint report of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, which reported that 71% of attorney surveyed believed that discovery was used as a tool to force settlements.

So, what does it all mean?  It is really too early to identify the source of the apparent discrepancies between the two surveys, but the FJC report certainly gives some pause.  Companies involved in large-scale litigation that involves e-discovery certainly know the tremendous costs that can result.  But I continually hear from practitioners the same thing reported in the FJC report – that e-discovery is really not that big a part of most routine litigation.  Personally, I think that this is the result of a number of factors.  The fact is that the overwhelming majority of our information is created and stored electronically.  Logically, then, e-discovery should be part of every case.  And, I suspect that it is, even in those cases where folks claim that it is not.  What we really have is an issue of semantics.  The paper records used in most “non-e-discovery” cases started life as ESI.  The parties have just agreed, often without any discussion, on paper as the form of production.  In those cases, the implicit agreement is that metadata is not important and paper (or static TIFF images) is the most useful and reasonable form of production.  As one person said during dinner last night, there really is no such thing as “e-discovery.”  There is only “discovery.”  Over time, as technology, and the acceptance of technology, mature, paper will likely take an increasingly smaller role even in the small, routine cases.  But, until then, the form of production in many cases will continue to be paper and the wheels of justice will continue to turn.

Filed under Discerning e-Discovery.

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