Finds Organizations and Businesses Unprepared, Attorneys Ignorant, New Rules Vague, Case Law Thin and Fluid. Concludes: Excessive Costs for E-Discovery, Civil Justice System in Need of Serious Repair, Discovery System is Broken. Calls for Lawyers and Judges to Educate Themselves on the Technology and the Case Law, and Organizations to Take Immediate Steps to Develop Standardized Storage, Retention and Retrieval Policies for Electronic Information.

The Emerging Challenge of Electronic Discovery: STRATEGIES for AMERICAN BUSINESSES

Electronic Discovery: A VIEW from the FRONT LINES

Interim Report & 2008 Litigation Survey of the Fellows of the American College of Trial Lawyers

Well, it seems no one is terribly pleased by the situation in the e-discovery world. According to the Fellows of the American College of Trial Lawyers – respondents had average experience of 38 years practicing law:

  • The civil justice system is in serious need of repair; it takes too long and costs too much.
  • The discovery system is broken. Discovery costs far too much and has become an end in itself.
  • Judges need to take more active control of litigation from the beginning.
  • Local rules are routinely described as “traps for the unwary.” Many think they should be abolished entirely or made uniform.

I was particularly struck by the conclusion that “the system works best when experienced lawyers are involved (they use discovery less or work out disputes themselves), when collegiality is encouraged and when competent, experienced judges play an active supervisory role.” Likewise, I took note of the statement that “87 percent agree that electronic discovery, in particular, is too costly, and 76 percent agree that the electronic discovery issues are not well understood by judges.” The Interim Report is nothing less than a clarion call for a complete overhaul of the discovery rules.

So does anyone out there think that’s going to happen? I do not.

The changes that are being wrought on civil discovery are not a result of poorly considered rules, ignorant lawyers or judges too busy to resolve disputes. They are the result of a digital revolution that has changed the very nature of communication in our world. The volume of email, text messages and voice – still the largest volume of data – continues to grow at extraordinary rates. We humans simply love to communicate with each other.

Maybe modern computers and instant communications are too useful. Maybe we should go back to where we were ten years ago. How about twenty years? No? Well then we can’t complain that the cost to sort through the detritus of the digital revolution is too much. It works both ways. We’ve accepted the positives. Now we’re going to cry over the negatives? We’re better than that.

Time and again, digital communications have proven to be the keys to winning cases. As lawyers, we understand that we must use these communications. The problem is finding what’s relevant. The solution lies with organizations adopting best practices. For example, according to yet another report, this one issued by ITpolicycompliance.com, an organization that publicizes the latest research on best practices for IT, organizations that implement best-in-class practices for legal holds experience 94 percent lower spending for legal settlements and fees than those with the worst practices. This is a significant number, which brings us to these other reports.

In A VIEW from the FRONT LINES, the authors begin with a horror story of a fact situation in a discrimination and pay case, where 500 gigabytes of potentially relevant data must be culled, processed and reviewed, numerous laptop and home computers are being used for business, and the company may face fines or even lose the case because of its “unknowingly belated attempts to preserve ESI and because of the inconsistent way it stored and retained ESI.” The report notes that 500 gigs of potentially discoverable information now represent a mid-size case.

I’m not sure what I’m supposed to take from this description. We have a company that has done nothing at all – zero – to deal with the records management problems that a runaway system has created. The Zubulake opinions are now four or five years old. The e-discovery amendments to the Federal Rules of Civil Procedure were enacted more than eighteen months ago. Surely, someone might have mentioned this to in-house counsel, the IT manager, someone. The records manager surely knows, because ARMA has been all over this. So has the ABA. Didn’t the company’s lawyer think it was important? A choice was made here. The choice was to forego the ability to defend this case and cases like it. It may have been an unconscious choice, but it was a choice nonetheless.

The Report goes on to mourn the ridiculous costs to deal with this volume of information. It complains that the new rules are vague. Aren’t all the civil rules vague? And the case law interpreting them is “thin and fluid.” It’s true that there are few bright lines, maybe none. But doesn’t that stem from the very nature of the beast. Electronic discovery deals with the product of the information revolution, which is big and all encompassing and everywhere we look in our society. It better be fluid. I disagree that there are very few cases that interpret the new rules. This blog contains about one hundred such cases, and I don’t get them all. And I just love the comment that businesses are reluctant to implement the Sedona Conference guidelines; they “are merely recommendations, not the sort of authority that a lawyer would stake his or her case on.” I beg to differ. Lawyers are staking their cases on these “recommendations” all the time. And Judges are readily adopting them. Case after case makes clear that good faith, transparent adoption of policies and procedures based upon intelligent consideration of business needs and e-discovery rules go a long way toward avoiding problems with the courts. And the Sedona Conference guidelines are constantly cited by the courts with clear approval.

The real problem here, which the Report makes clear in part III, is the fact that “organizations are not prepared for e-discovery.” The Report cites numerous studies and surveys showing this. Without adequate preparation, “[f]or most organizations and their lawyers – especially the uninitiated – compiling all the information needed for this early meeting [the Rule 26 meet and confer] in under three months time is like preparing for a hurricane on an hour’s notice – there is far too much to do and not nearly enough time."

The Report ends with a litany of concerns. The cost of e-discovery is limiting access to the courts. Everyone – lawyers, litigants, judges – are scrambling to prepare themselves. The amount of ESI is growing at an astounding rate. Even modest litigation may degenerate into “a calculus over the potential for sanctions due to the failure to preserve ESI instead of a resolution of the merits of the case.” The Report sounds “a near-unanimous call for a change in the way litigants, judges and lawyers think about discovery in general.” Maybe. But it is Craig Ball who makes the most sense to me. He “believes that businesses must re-think the way they manage their data and educate their workers on the front-end handling of ESI and that lawyers must embrace technology to make the review and production of ESI more efficient.” Courts must “re-examine their approach to e-discovery and start facilitating a more cooperative e-discovery environment.”

Judge James K. Bredar suggests that a proportional system of discovery is needed, “where the amount of discovery permitted is dictated by the amount in controversy.” I would suggest that we already have that type of system. Rule 26(b)(2)(C)(iii) provides a balancing system that simply is not used by very many litigators. The very definition of “not reasonably accessible” is based upon a proportionality analysis. Why don’t we see it used more?

The final Report, STRATEGIES for AMERICAN BUSINESSES pretty much encapsulates what is needed. In Part II: Planning for E-Discovery, the following is the Table of Contents:

  1. Prepare your business or organization for electronic discovery.
  2. Accept modern technology for what it is.
  3. Inform yourself about the technology that you use every day.
  4. Be thoughtful about how you save—and preserve—electronically stored information.
  5. Do not assume that if ESI is deleted, it is gone.
  6. Choose your professional assistance carefully.
  7. Control the tone of your own litigation.
  8. Insist on proportionality.
  9. Be precise about the ESI you request and insist on the same precision.
  10. Be ready to educate the court about your ESI.

That pretty much says it all.

Download the Reports from the Institute

Read the Executive Summary of the IT Policy Survey