This civil litigator truce, this equilibrium, this “idiot’s bargain,” (I call it that because it is based on a mutual recognition of one’s own incompetence and unpreparedness) exists in a lot of U.S. civil litigation. But this deal is changing. Why?
Because the idiot’s bargain is premised on a symmetrical/reciprocal threat. But let’s say I represent a 21st Century Super Sophisticated Smart Business (SSSB), which has not been idly going about 20th century business for the past decade. In fact, with the help of super-sophisticated providers (like these guys or these guys or these guys), SSSB has an elaborate document retention system, litigation hold system, data search system and so on.
Then SSSB may have asymmetrical advantage. If so, SSB will have little interest in the Idiot’s Bargain.
Fortunately, we are all becoming SSSB! Even the court systems! Note the recently announced pilot program about ESI and the use of guiding principles and an ESI checklist from the U.S. District Court for the Eastern District of Michigan.