Reasonableness in Electronic Discovery

In a world of tightening budgets and greater scrutiny, how do litigants act reasonably while still fully prosecuting or defending a case?  Is it possible to thoroughly address e-discovery issues without breaking the bank?

Yes.  Cooperation may not yet be common, but it is becoming increasingly popular.  In my last post, I discussed the Sedona Conference’s Cooperation Proclamation, and why cooperation is the way of the future.  Gibson Dunn recently issued its 2009 Year-End Electronic Discovery and Information Law Update, where cooperation and transparency were noted as one of the major highlights for 2009.  Numerous courts emphasized the need for cooperation.  Indeed, collaborative efforts make the process more effective and efficient.

Another movement that may drive reasonableness for both plaintiffs and defendants is the increasing number of sanctions.  2009 saw almost twice as many e-discovery opinions as 2008.  And almost half the opinions addressed sanctions (awarded in 70% of the cases).  Defendants are generally the target of sanctions, but this too is changing.  For example, Judge Shira A. Scheindlin, the famed author of the Zubulake opinions, recently issued an opinion and amendment imposing sanctions on 13 plaintiffs, finding “most plaintiffs conducted discovery in an ignorant and indifferent fashion.”

Proportionality is also key.  Are you spending $1 million on a $50,000 dispute?  Have you interviewed one custodian for a bet-the-company litigation?  Are you demanding the other side to produce 10 years of accessible and inaccessible data when only one year is relevant?  Reasonable requests generally get reasonable responses.

Electronic discovery is changing what and how we think about information, where it is stored, and how it is kept.  Contrary to some assertions, I believe e-discovery is helping companies and making them more efficient, not burdening the companies with crushing expenses.  At the end of the day, most companies’ goal is to understand and be reasonable with its practices and policies.  E-discovery does just that.