B&L Associates

Burden of eDiscovery may be overstated

December 29, 2011

Although technical and legal developments have changed the face of eDiscovery in recent months, several legislators and industry experts are suggesting that the perceived cost and complexity of electronic discovery processes have been exaggerated.

Much of controversy surrounds the matter of data preservation. With employees communicating across more channels and storing information on a wider range of devices, corporate IT teams are struggling to design optimal media management strategies. In the meantime, most are erring on the side caution and preserving much more data than is actually necessary. As a result, eDiscovery practitioners are spending more time and money than ever before sorting through archives.

Industry experts are now calling for legislative reforms that account for the changing landscape of eDiscovery, with a focus on developing new pricing models. But according to eDiscovery Journal, Michigan Congressman John Conyers Jr. is just one of many lawmakers who are not convinced of the need for change. By his estimates, "burdensome discovery processes are only an issue in one-tenth of one percent of all civil cases."

According to Law.com, an exaggerated fear of sanctions is also complicating matters and reinforcing unnecessarily conservative data preservation policies. Conflicting and confusing standards have also drawn criticism from eDiscovery practitioners, with many suggesting that "burdens on litigants [are] far beyond what could be considered reasonable."

However, empirical analyses would seem to suggest that, in reality, the sum of all fears is rarely actualized in trial proceedings. According to the news source, the number of eDiscovery decisions involving sanctions - and the rate of sanctions awarded - has declined in the past two years. In most cases, litigants are resolving issues before it comes to filing such motions.