The volume of documents and data produced and requested during discovery
continues to increase every year—as does the volume of electronically stored
information (“ESI”) that clients must preserve. The glut of ESI arises as a
consequence of the exponential growth in the creation and exchange of electronic
files and email traffic. Look around your own office and you’ll see less paper and
more rules supporting a “paperless environment.” Personal and employee data
storage alone now often run into terabytes—a storage capacity once reserved
for servers capable of hosting the files for an entire network. And it is no
longer simply a “big business” problem.
This compounding burden has spread across businesses large and small—creating
an entire legal practice dedicated to electronic discovery, document preservation,
and establishing best practices. Worse yet, there are scathing judicial opinions
and ruinous sanctions that have followed the failure to properly preserve,
search, review, and produce ESI.
The result is that even in cases with a relatively low monetary value, there are
often still hundreds of thousands or even millions of files, and a significant
portion of the cost of litigation is driven by the obligation related to ESI. There
is seemingly no end in sight. The volume of documents and electronic files will
only continue to grow and make it commercially unconscionable—and perhaps a
practical impossibility—to conduct a document-by-document review in most cases.
Fortunately, the same computing power that has provided this overabundance
of data may also provide the solution for reviewing, coding, and producing it in
litigation—with minimal human review. Thus, clients and practitioners must
understand what technology is available, how it works, how it has been applied
by the courts, and if it can be trusted to shift the conversation on ESI.
The 2015 Amendments to the Federal Rules of Civil Procedure, in Rules 26(f)
and 37(e), and the related Advisory Committee Notes, suggest a beginning to
this much-needed change in perspective.