Limitless ESI — Access to Justice Denied

According to a recent article in The Economist, the advent of e-discovery may be the single most significant change to the legal system in the last half century. This is principally due to the huge volumes of material that can be involved and the sometimes staggering cost of processing it. It has been aptly put by Ken Withers, Director of Judicial Education and Content for The Sedona Conference,

More money is probably spent litigating electronic discovery problems than in litigating class actions…this is part of potentially every case in the 21st century

Approximately 60 billion emails are created and sent every day and over 99% of all documents are created and stored electronically.[PDF] According to a Chicago law firm quoted in the Economist article referred to above, restoring email can cost roughly US$2.00 per message, including the cost of lawyers needed to review the documents. An in-house lawyer for Q-West, a telecom firm, also acknowledges that his firm spends at least twenty-five (25) percent more on legal fees relating to discoveries then is did two (2) years ago. An article which appeared in the Chicago Tribune three years ago reported that Exxon Mobile generates 121,000 back-up tapes per month, which it routinely recycles according to its records retention policies. The company claimed that if a judge ordered it to stop recycling tapes to preserve data, the additional cost to purchase extra tapes would be $1.9 million per month.

The scope of the duty to preserve, and breadth of the type of electronically-stored information subject to the preservation obligation is also not always readily apparent. By way of illustration, on May 29, 2007, the U.S. District Court for the Central District of California held in Columbia Pictures v. Justin Bunnell [TorrentSpy] that data temporarily stored in a computer’s random access memory (RAM) was a relevant document that must be preserved and produced in litigation. In this regard, the U.S. justice system has adopted a simple rule when discussing the obligation of organizations to preserve:

… the more sophisticated the information technology in which a business invests, the greater its digital information preservation obligations. Additionally, the more ways in which a business seeks to share information and enable access to information, the broader its preservation obligations.

Litigation counsel and their clients are now arguably put on notice that data in RAM that can be modified up to several billion times per second should be considered a potentially relevant document that may need to be preserved as part of a litigation hold! The literal explosion in the amount of electronically stored information which is produced today and the increasing use of more complex electronic document and communication technologies (such as internal blogs, collaborative shares, internet and voice over internet protocol (VOIP)) only serve to magnify the issue.

Inextricably linked to the preservation obligations plaguing counsel and litigants are the production disputes that provide much fodder for our judges and courts. The courts in Canada have denied onerous and abusive requests for production when attempting to balance the litigator’s mindset to leave no stone unturned and to beat the proverbial opponent to death through endless production demands against today’s reality of apparently limitless ESI. Take, for example, the case where the court refused to order the production of reports which could verify from which IP address certain on-line bets were placed9 and the case where the corporate defendant was being asked to search its entire computer system for an e-mail relating to “matters at issue in the litigation”10. In both cases the court found the requests to be unduly burdensome and oppressive. Principle 2 of The Sedona Canada Principles,11 sometime referred to as the Proportionality Rule, is a reaction to the delays and costs impeding access to justice.

In a speech to the Canadian Bar Association in August 2007, Justice Beverly McLachlin declared access to justice “a basic right” for Canadians, like education or health care. The justice system risks losing the confidence of the public if access is beyond the reach of average Canadians.12 The new reality of the digital world leads to the obvious concern that individual litigants will seldom have the means or resources to tackle the e-discovery behemoth, particularly if they are taking on the proverbial corporate giant.

Unfortunately, the access to justice problem is magnified in the E-discovery world – can proportionality be achieved in a world where we have grown increasingly dependent on our blackberries, Facebook and MySpace interchanges—Is the courtroom a stage where only the rich can play?

Comments

  1. The courtroom has long been a stage where only the rich or legally-aided can play. I suspect that ediscovery will work itself out, in part through better record keeping practices and in part through a tougher estimation of relevance and proportionality – and possibly in part through some well-aimed sanctions at counsel and their clients who try to cheat and fail, making the attempt too costly for most litigants. For the moment, the novelty makes for litigation.

    The next big thing may be the admissibility of electronic evidence itself, rather than just its discovery. These are two quite distinct problems. So far the courts have been very willing to accept that e-evidence is admissible/reliable/authentic. At some point they may start asking harder questions. (I don’t say they’ll be completely right to do so, but it’s not clear that counsel know enough to ask the hard questions in most cases.)