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?
I believe that e-discovery can and will be as simple and stream-lined as that in many if not most cases in the near future. It is just a matter of time before businesses large and small, individual people, and, yes, even lawyers, will figure this out.
In the meantime, however, we have our work cut out for us.
Here are a few of the hurdles that impede my idealized low cost e-discovery scenario:
- Human Mistrust and Dishonesty:
- Many litigants (and their lawyers) refuse to trust an adversary to search the adversary’s own ESI, fearing that the adversary will (a) destroy, (b) alter, or (c) withhold important ESI
- Hi-tech Accelerated Life-spans:
- Since we are on speeding bullet trains of innovation, with seemingly constant and endless software upgrading and re-tooling, many cases are bogged down with data in obsolete forms, that add to expense when litigants are forced to engage in what ends up being an electronic equivalent of archaeology;
- The Sheer Volume of Data
- It would be one thing if companies stored the equivalent amount electronically that they used to collect on paper or other pre-digital storage devices. They don’t. As we all know, some employers save each employee’s key-strokes on their terminals.
- “Back-up tapes,” or densely packed and deconstructed electronic data, now costs a staggering amount of time and money to restore.
Any other hurdles? Any solutions on the horizon? That is some food for thought to nosh on between courses at Thanksgiving…