The highly respected Gartner research group reports that United States Supreme Court Justice Stephen Breyer recently participated in a panel discussion on e-discovery. This is a big deal because this is the first time a Justice of the Supreme Court has made any public statements about e-discovery. His comments provide the first hint of how the high court might someday rule when it hears an e-discovery case.
Justice Breyer is apparently troubled by reports of the high costs of e-discovery. He expressed concern that these costs could push litigants out of the U.S. court system into private dispute resolution where little or no discovery is permitted. In the words of Justice Breyer:
If it really costs millions to do that [e-discovery], then you’re going to drive out of the litigation system a lot of people who ought to be there. They’ll go to arbitration . . . They will go somewhere where they will write their own discovery rules, and I think that is unfortunate in many ways.
Justice Breyer is considered one of the more liberal members of the court. If he is as concerned about costs as this quote suggests, a factor that is most worrisome to big business and other large organizations, and not at all to consumers and the typical plaintiffs’ bar, this suggests the Supreme Court may be inclined to provide some kind of relief to defendants. For instance, the Supreme Court might one day interpret the new Rules of Civil Procedure, over which they are the final arbitrators, to provide greater protection from expensive e-discovery production. For instance, they could interpret Rule 26(b)(2)(B) to almost always require cost shifting for production of information from back up tapes. It will probably be many years before we see such a case reach the high court because discovery issues are almost never discussed there. But if the problem of out-of-control e-discovery costs continues, the Supreme Court may make an exception and address the issue.
The one day event that included Justice Breyer on a panel was held at the Georgetown University Law Center and sponsored by e-discovery vendor H5. The panel discussion was moderated by Harvard’s famous civil procedure Professor Arthur Miller. Other panelists included Richard Braman of Sedona, Jason Baron from the National Archives, and Judge John Facciola. The discussions and recommendations of this distinguished faculty are well summarized in the Gartner Research Note: Cost of E-Discovery Threatens to Skew Justice System. I recommend reading this in full, but here is my summary of the highlights:
- The expense of e-Discovery has risen dramatically along with the massive profusion of technology in society, especially the Internet and email, and the general explosion in the amount of information.
- The costs of e-discovery today are too high, and this great expense is having a negative impact on society and the practice of law.
- There is a danger that only the rich will be able to afford the costs of e-discovery inherent in the lawsuits of today and tomorrow.
- There is a danger that law suits will be decided on the basis of process, instead of merit, especially if an organization does not effectively manage its electronic information.
- The problem of e-discovery should be a high priority for both the legal profession and business.
- Lawyers and senior management do not understand or comprehend the complexity of the technology or the volumes of information produced by organizations today.
- The high cost of e-discovery can be attributed to: (a) the adversarial nature of litigation, (b) bad or nonexistent document retention polices, and (c) undisciplined deployment of technology.
- Lawyers need to make better use of technology in e-discovery, and to adopt a more collaborative approach to discovery.
- Businesses and other large organizations need to better manage and control their storage of information. Specifically, the panel recommended they: (a) develop reasonable document retention policies that support the needs of the business and destroy information when it is no longer needed, (b) communicate, educate and enforce document retention policies, and (c) use technology to automate document retention policy and compliance.
- There is a need for neutral third parties in litigation to help determine what needs to be discovered.
The Gartner Research Note concluded that:
The long-term trend that emerges from this panel is the fact that the legal community is under an obligation to learn about the IT infrastructure, topology and architecture of the organizations they represent.
Information technology has created the problem of massive amounts of data that the court system must deal with. Only technology can solve the problem if it includes well-designed business processes and policies. Throwing technology at the e-discovery problem is in itself ineffective. In a perfect world, the solution to the e-discovery problem would combine the expertise of lawyers, line-of-business owners, IT professionals and a host of other disciplines.
In other words, Gartner here recommends the multidisciplinary Team approach that is the theme of this Blog. Gartner goes on to specifically recommend that its clients address e-discovery readiness now, beginning with an inventory of all information assets, deduplication, and destruction of redundant and unneeded data “in a legally sanctioned and policy-driven way.” I could not agree more.