Post Process

Everything to do with E-discovery & ESI

Complaints over E-discovery Costs Intensify

Posted by rjbiii on September 15, 2008

I have recently read two separate articles discussing the need to “fix” the current system, with respect to e-discovery. The Economist, has posted an article that concludes that the U.S. is “way behind” other countries’ civil systems because of Judges’ inability to control the scope of discovery. The situation, according to the article, has led to the need for experts who “merrily” charge large sums of money for their assistance:

This has led to a new boom industry of specialised e-discovery service providers which merrily charge $125-600 an hour. George Socha, a consultant, estimates that their annual revenues have grown from $40m in 1999 to about $2 billion in 2006 and may hit $4 billion next year.

Interestingly, the article begins with an example of a plaintiff involved in a lawsuit with an HMO, who has been “daunted” by the scope of e-discovery. Again, it is not the HMO complaining…it is the plaintiff, a teen-aged girl complaining about decisions made by an HMO. Evidently, the defendant requested production of “practically everything the teenagers had said on their Facebook and MySpace profiles, in instant-messaging threads, text messages, e-mails, blog posts and whatever else the girls might have done online”

The article mentions that the attorney objected on grounds of privacy, and lost. One would also hope that relevance and undue burden might also have been broached. Because the plaintiff’s psychological state is an issue, I suppose relevance can construed rather broadly to almost any communication she generates, but nevertheless, one would think that the Judge could use discretion to curtail any “fishing expedition.” One of the articles biggest complaints is that Judges don’t use their discretion to manage the scope of discovery. One wonders, though, how educated counsel is on the principles and laws of ESI. It has been my observation that plaintiffs firm are behind the learning curve. Another interesting point is the placement of this case at the front of the story. Most of the complaints I’ve heard come from the corporate side, claiming that plaintiff’s are using the costs of EDD against them to encourage settlements. While I love The Economist, it is certainly a business-friendly publication. It does go on to extensively discuss the issues that corporations are having in the new environment.

A related article comes from the ABA, wherein trial lawyers call e-discovery a “morass” (registration may be required):

The civil justice system in the United States is so bogged down in a “morass” of e-discovery that it is often too expensive for litigants to take their cases to trial, according to a survey of trial lawyers.

Now the next step is to fix this increasingly dysfunctional system, according to a press release (PDF) about an interim report (reg. req.) on the survey, which is a joint project of the American College of Trial Lawyers and the University of Denver’s Institute for the Advancement of the American Legal System (IAALS).

Among the key findings of the survey: Judges don’t use sufficient discretion to “control excessive discovery.” The bottom line from the survey:

“Discovery is out of control. Attorneys know it; judges know it; and clients know it. E-discovery just makes it more obvious,” [former Colorado Supreme Court Justice Rebecca Love Kourlis] writes. “We have to figure out a way to fix it.

I think that part of the problem here is that attorneys and judges, who work in an industry designed to be ponderous, now find themselves in a new world. And most of them don’t like it. Again, in theory, digital evidence is easier to deal with. Why? Well, compare the using a search interface with the manual process of hunting through boxes, squinting at index sheets, and and working your way through mountains of paper in hot warehouses. Which sounds like a better system?

So while we can discuss the need to prevent fishing expeditions, or parties’ use of discovery as leverage to prop up weak cases, we need to also understand that we are in the early part of this new age; a time of transition. This will get easier.

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