In my last column, I discussed the revolution that e-discovery has wrought. To briefly recap, e-discovery has turned discovery upside down. E-discovery has shifted the primary truth-gathering function in the litigation process to the location, search and understanding of electronically stored information (ESI). Some cases will still require significant conventional deposition discovery, and some cases will require trials, but the focus of the truth-finding function, especially in commercial cases, has now shifted to we would traditionally call “document discovery,” which today we call “e-discovery.”
This does not mean gathering all the relevant ESI “about, related to or concerning” every conceivable topic in the litigation—that is the killer mistake. E-discovery starts with the concept of important information. Relevance is necessary but no longer sufficient. Rule 26(b)(2)(C)(iii), a rule that somewhat ironically predates the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, mandates that discovery be proportionate to the case. By “friending” e-discovery, to borrow from contemporary parlance, we now have the increasing capability to get closer to the truth sooner rather than later, without the heavy financial and opportunity costs of years of litigation.