By Casey C. SullivanLast Thursday, Logikcull released “Views From the Bench: Leading Federal Judges in Conversation on eDiscovery and More,” which brings together the thoughts of a dozen federal judges—Judges Shira Scheindlin, David Campbell, John Facciola, Andrew Peck and many, many more—in conversation on some of the most pressing issues facing the court system today. Topics such as: the impact of growing litigation and eDiscovery expenses on access to justice, the way recent rules changes are altering courts’ approach to discovery, the impact of technology on the law, and more.
Based on years of interviews, “Views From the Bench” brings together the thoughts of the judiciary in a way never done before. It’s a must read for anyone in litigation, eDiscovery, and the legal profession. We’ve excerpted the beginning of that conversation below and invite you to download the whole anthology, for free, here.
Views From the Bench: Part I: The Role of eDiscovery in Today’s Court System
How does the cost of discovery impact litigants’ access to justice?
“The costs of discovery may, in the long run, drive an entire economic class out of the federal court for lack of means to engage.”
Certainly I am in despair over how the ordinary lawsuit between a single plaintiff and a moderate-sized corporation can possibly go forward unless we figure out a way to get the costs of discovery down and make them more manageable. The solutions are ahead of us.
How effective the programs and policies are, I can’t really say.
The last thing we want to do is make federal court a court for only economically elite litigants. That is not the way it should be. Access to justice is critically important to everyone in our society. It’s important for the rule of law and it’s important, in my view, for overall government in a democracy.
That’s one of the problems we talked about at the 2010 conference [on civil litigation hosted by Duke Law School]. Part of our intent in putting the proportionality idea into the new rules and trying to get judges to actively manage cases more efficiently from the beginning, and we hope cutting down the side litigation over the loss of ESI, is to reign in the cost of discovery.
When the dust had settled, the [ESI] expert had charged $20,000 and the attorneys fees were $66,000, so from the get go, we are $86,000 in the hole looking for Facebook entries. Will they be useful? Will they make any difference in this lawsuit? God only knows. But those are the problems I’m most worried about. I really believe that people should be able to get a prompt, and efficient and just determination of their disputes without going into bankruptcy as a condition, and facing a situation where they simply run out of money before they can complete the prosecution of the case.
“Our culture needs a lot of change in that overall view of litigation.”
I don’t know [if it happens] a lot, but it certainly happens that people get priced out of federal court litigation. I think if we focused on these suggested solutions that are now supposedly in place with the revised discovery rules, I think we could get a handle on this problem.
On the other hand, I don’t know if it is, in fact I would think it is not, any cheaper to do it in state court or even in arbitration. It used to be, 30 to 40 years ago, the arbitration rules did not allow discovery. Lawyers started finding backdoor ways to get discovery in arbitration by subpoenaing documents to be brought to the arbitration and then asking the arbitrators to adjourn the hearing so that they can actually look at the documents, creating discovery in that way. Since then, most of the arbitration organizations’ rules now allow discovery. So it’s everywhere.
If people kept their ESI in a more organized fashion, perhaps, we would not have these costs and expenses. But, unfortunately, most people and companies may or may not be organized for business needs, but are not sufficiently organized for litigation purposes. Despite all the talk about information governance and companies needing to put in an information governance plan, I think there is a lot more talk than major activity in that area.
“The cost of discovery has always been a cost of doing business in this country.”
So that’s where we are, and it’s not a particularly good place. We always hope that technology will come to our rescue—and maybe it will in a magical way. That may very well be true for the big litigants who can afford it. As to everyone else, the verdict is not in, but the initial signs are not good.
It’s interesting, one of the first opinions I wrote in electronic discovery was in McPeek v. Ashcroft, which occurred back in 1997. And in it, I said we couldn’t have a system of justice in America where we were paying $300,000 for an email.
I wish I hadn’t been so prescient, but we are now paying $300,000 for email—or $86,000 for Facebook entries! And now we really have to ask ourselves some tough questions about how much longer the system can tolerate this. I don’t know.
Download the rest of "Views from the Bench" here.
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This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.
