I coined the term “e-disgustery” for e-discovery back in March, 2013, defining e-discovery, roughly, as a recipe for a nauseating mille-feuille gateau de merde with gooey alternating layers of jam and cash .
On Thanksgiving Eve, I propose we take a tiny nibble of this work-place emetic to better savor (or maybe just endure) the family
dysfunction gatherings in the days to come. “At least I am not dealing with e-discovery,” you will think to yourself as you abide Cousin Cal’s interminable narrative of imagined (or self-inflicted) persecution, Grandpa Clyde’s repellent polemic, Aunt Gloria’s unspeakably awful side-dish, or whatever.
E-discovery is disastrous in small stakes litigation. You might say the “e” stands for “extremely expensive.” As a result, in small stakes litigation, lawyers, courts, and clients normally navigate some arrangement where they do not incur the hassle of deep dives into one another’s electronic data because the dives cannot be cost-justified. Yay.
If, on the other hand, there are millions of dollars at stake and if your client is still dragging his feet about complying with the collection, review, and production of electronic evidence, send him this (a tough order by U.S. District Court Judge Susan R. Nelson (D. Minn.) based on concerns about certain litigants’ responses to their e-discovery obligations in large litigation) and this (an e-discovery guide (U.S. D. Ct., D. Minn.) for practitioners). Tell him to fasten his seat-belt and loosen his purse strings, or else.
Seriously, one aspect of the failings of U.S. civil litigation is the apparent difficulty the court system has, as well as its courtesans and courtiers (lawyers and litigants), when it comes to e-discovery — the collection and production of electronic data (email, voice-mail, text messages, digital video, digital photos, digital files (Word™, Excel™) (all known as “electronically stored information” or ESI). On the surface, it sounds so easy and, in fact, so much less expensive than old-fashioned “banker’s boxes” of discovery, tens, hundreds, or thousands of boxes in a case, each with thousands of pages of documents.
Slap that electronic data on a hard drive and you’re done, right?