As a small-firm lawyer with background representing consumers, not corporations, I’ve never really understood why e-discovery is such a big deal. When it comes to discovery, I just want the documents I asked for; I don’t care how a defendant gets them.
I learned why it’s such a big deal at an e-discovery forum yesterday morning, the latest group to grow out of the Friends of eDiscovery project. Once I got done posting sarcastic tweets about the number of nerdy lawyers in one room, here is what I gleaned.
First, the scope of the problem is enormous. According to Karl Schieneman, one large corporation (Microsoft, I think he said), preserves well over 300,000 pages of digital data for every page it produces in e-discovery. My default setting in litigation was to get as much information as possible and sort through it myself. But it looks like even sorting out the relevant documents is a monumental task in and of itself. for this reason corporate lawyers want to see the end of discovery requests asking for any and all of anything.
Asymmetry in cost can also be major, especially when consumers sue corporations (when corporations sue each other, costs should even out a bit more). Grabbing screenshots from Facebook isn’t the same as imaging, indexing, and reviewing the contents of hundreds of hard drives. The answer to corporations may just be tough, but it’s definitely a big concern for corporate defendants.
Apart from the tribulations of corporations, the lack of attention to e-discovery in general is alarming. According to a recent study Scheineman cited, litigants address electronically-stored information (ESI) at only about 40% of discovery conferences. In an era where we all have tons of digital data, that number should probably be closer to 100%, even if ESI does not figure prominently in the case.
This all ads up to a lot of in-house and outside counsel who are struggling to get clients, opposing counsel, and each other to appreciate the magnitude of the problem and conduct themselves accordingly. That’s a pretty big challenge — and a pretty big deal. Hence this e-discovery forum, which felt like it was as much a support group for lawyers coping with the magnitude of the problem as a learning resource.
If you are coping with e-discovery yourself, or you just want to find out what it’s all about, check out the Friends of eDiscovery project to see if there is a group meeting in your area.