Electronic Discovery and the Litigation Matrix
Redish, Martin H., Duke Law Journal
The impact of the technological revolution on the operation of the discovery system in the federal courts has been dramatic. The enormous increase in storage capacity and communication that the use of computers in the corporate worm has brought about has correspondingly increased both the burdens and stakes of the discovery process. This Article considers the extent to which these dramatic practical changes have created a need to develop a legal framework especially for the discovery of electronically stored information. Because the burdens of electronic discovery are likely to be substantially more severe than those involved in traditional discovery, the drafters of the Federal Rules of Civil Procedure or the courts should adopt a conditional cost-shifting model solely for use in the electronic discovery context. Ultimately, the model must be informed by the deep structural values underlying the litigation system.
It was neither a comet nor a dramatic climactic change that killed off the dinosaurs. They perished because they could not adapt to the digital age.
Jerold S. Solovy & Robert L. Byman (1)
Since its inception, the modern discovery process has been the subject of substantial controversy. (2) Dispute was widespread at the time of the process's adoption as part of the Federal Rules of Civil Procedure in 1938, which made discovery an instrumental part of the revolutionary notice pleading system, (3) and the debate has continued vigorously ever since. Indeed, in the last generation the discovery process in the federal courts has been modified substantially on four separate occasions. (4) Yet many in the legal community remain unsatisfied. (5) Such vigorous disagreements should not be surprising, because in important ways the discovery process is reminiscent of humankind's discovery of fire: While capable of providing great benefits to society, if misused it also is capable of causing severe harm. By enabling litigants to acquire relevant information that otherwise may be unavailable to them, discovery serves the interests of procedural justice and facilitates enforcement of the societal policy choices embodied in controlling substantive law. But discovery is by no means costless, either to litigants or to society. The numerous and dramatic shifts in discovery regulation that have plagued the Federal Rules in recent years reflect these tensions.
Although the rules' drafters and revisers over the years appear--at least so far--to have failed to fashion a discovery process that satisfies most people, the bad news is that discovery problems are rapidly becoming more complex and pervasive in ways the original drafters of the Federal Rules likely never dreamed about. The technological explosion has altered dramatically both the nature and stakes of those problems. It hardly could be disputed that, in the words of one authority, "[c]omputer technology has revolutionized the way we deal with information and the way we run our businesses. Increasingly, important business information is being created, stored and communicated electronically." (6) Not surprisingly, then, "[t]he discovery of electronic evidence has become the modern litigator's newest tool (or some would say, weapon)." (7)
There are numerous ways in which electronic evidence can be strategically vital in modern litigation. For example, electronic evidence has proven crucial in determining the outcome in cases involving allegations of sexual harassment, disputes over trade secrets, copyright infringement, and insider trading. (8) Indeed, one need only recall the dramatic use of damaging e-mails during cross-examination in the Microsoft antitrust litigation (9) to see how important electronic evidence has become. It is therefore only natural that the discovery of electronic evidence has assumed enormous importance in modern litigation. (10)
To be sure, the explosion in communications technology has facilitated the discovery process in important ways due to substantial improvements in the ease of accessing information. …