As in-house counsel know, litigation sometimes is hard to avoid, discovery is probably the most expensive part of litigation and the proliferation of electronically stored information ( ESI) has made discovery more complicated and expensive than ever. In 1996, back when people still used paper, my article "Taming the Paper Tiger," which appeared in Litigation Management & Economics, decried the complexity and expense of managing all of the paper records potentially discoverable in complex litigation. Little did we know how good we had it then--or how much worse it could get. Now, instead of taming the paper tiger we are faced with mastering the e-beast.
So how do we master this dangerous beast? There is no magic lasso, but we are seeing progress on several fronts. The 2006 Federal Rules amendments provide some protection against having to produce ESI that is "not reasonably accessible due to undue burden or cost." The Sedona Conference, a widely renowned nonprofit think tank that provides guidance on e-discovery and other issues, has several working groups that have developed constructive suggestions for improving discovery, and those suggestions often gain traction in the courts. For example, the 2008 Sedona "Cooperation Proclamation," encouraging parties to cooperate to agree to reasonable limitations with regard to discovery, has now been endorsed by at least 110 state and federal judges. In October of 2010 we saw release of the Sedona Conference Commentary on Proportionality in Electronic Discovery, recommending that courts give real meaning to the provisions Fed. R. Civ. P. 1, providing that the rules "should be construed and administered to secure the just, speedy and inexpensive determination of every action..." (emphasis supplied). Most states have analogous provisions in their state rules of civil procedure.