Discovery Stalemate

They looked like caged animals as they sat in front of rows of flat-screen computer monitors in a dark, glass-enclosed conference room. None of the 20 people in the room was speaking. They were just staring at their screens, which were the only source of light in the room.

My friend, who works at a large D.C. law firm, explained that these people were staff attorneys who were reviewing electronic documents for a major case. She said a staff attorney is basically an associate who had fallen off the partnership track. They appeared to be living in legal purgatory.

Sadly, this may be the future many young lawyers face. At least that's the impression I got from a panel of experts who recently spoke at an e-discovery summit hosted by H5, a legal technology provider. The panelists included in-house lawyers and academics. The star attraction, though, was Supreme Court Justice Stephen Breyer.

The panel spoke at length about the crushing blow of e-discovery--both from a time and cost perspective. A lawyer from Verizon mentioned a case in which his client racked up $4 million in document review costs alone. That number surprised Justice Breyer, who expressed concern that e-discovery costs will soon close the courts to everyone except the wealthiest companies. As we reveal in this month's cover story, arbitration is heading in the same direction.

Unfortunately, the panel offered few solutions. Most agreed that the key to solving the problem was for plaintiffs and defendants to collaborate on limiting the scope of their requests. But few, I think, actually believed that was possible.

Justice Breyer said judges need to insert themselves more into the e-discovery process--setting parameters on how electronic files should be culled and searched. But he warned the lawyers in the room that they may not be too pleased with the results. And he's probably right. Most judges are like Justice Breyer, who admitted to having a limited understanding of the complexities of searching and producing electronic data.

In the end, there's no silver bullet. E-discovery simply has become part of the cost of doing business in America. The bad news, though, is that those costs will continue to increase. A recent study estimated that people created enough digital information last year to fill 12 stacks of books that would reach from Earth to the sun.

I am glad I am not a staff attorney.

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