When most people think of electronic discovery, they probably envision a lawsuit in federal court between corporate giants with big litigation budgets and terabytes of electronically stored information (ESI). To be sure, the federal courts have seen their share of prominent developments and high profile cases. But the front lines are moving. For every case filed in federal court, more than 20 are filed in state court. And while e-discovery may have begun as a “big case” problem, it is quickly becoming an “every case” phenomenon. In a world where everyone with a smart phone is an ESI custodian, the problems of e-discovery affect all types of litigants in all types of cases. E-discovery has arrived in the state courts, and the problems there are every bit as big, and every bit as complicated, as they are in federal court.
On September 19th and 20th, state court judges and e-discovery experts from around the country gathered to discuss the challenges that e-discovery poses for state courts. Co-hosted by IAALS and the National Judicial College, the program began with an overview of the basics of e-discovery before launching into an in-depth and interactive discussion of advanced issues, including preservation duties, the collection and review process, how to maintain proportionality, and the potential development and use of local e-discovery guidelines and model orders.
With state courts having such divergent dockets and large numbers of cases with unsophisticated or unrepresented parties, it would be impossible to account for all of the challenges state courts face as they grapple with e-discovery. But in the search for possible solutions, several important themes merged:
- There is no single silver bullet solution that will make e-discovery cheap and easy. Even within types of cases, what makes sense for one case will not always make sense for the next.
- The old way of “eyes on” document review does not work when large amounts of ESI are involved. Human review was never that great to begin with. New technologies can’t deliver perfection, but they can do the job better, faster, and cheaper.
- Early judicial case management is essential. It is almost always easier and less expensive to prevent e-discovery problems from happening than it is to fix them after they occur.
- Most e-discovery problems can be solved with a quick conference—and without briefing. A key part of achieving proportionality in discovery is keeping the parties focused on actually doing the discovery that makes sense rather than endlessly fighting over what to do. The more the judge can encourage cooperation, the more effective the discovery process will be.
- Rules, guidelines, and model orders can help guide the parties, but they must be designed to facilitate judicial management, not replace it. Here, too, no one size fits all.
- The best local reforms are developed as part of a group effort, with input from and outreach to other judges, the local bar, and other interested stakeholders. Changing e-discovery practice is as much about changing culture as it is about changing rules.
In Anna Karenina, Tolstoy wrote that “happy families are alike; every unhappy family is unhappy in its own way.” The same could be said for state courts and e-discovery. Different states—and different courts within those states—necessarily will have to confront their own sources of “e-discovery unhappiness” in ways that make sense in light of local culture, docket details, and available resources. But there are things judges can do to guide the e-discovery process to reduce cost, prevent problems, and promote fair and affordable access to the courts. And whether your litigation “family” is big or small, most of these practices can be adopted or adapted to make the e-discovery process a “happier” one.