Last week I attended a great e-discovery forum: “And Justice for All: How the Electronic Information Explosion is Transforming the American Legal System.” H5 Technologies assembled an outstanding panel (listed below), moderated by Prof. Arthur Miller. 

The 2-hour long panel discussion explored the impact of the explosion in electronic data on litigation, government record keeping, and privacy. I will focus on a few highlights from the litigation portion.

A big theme was the ability of lawyers to find relevant documents. One panelist thought that business should organize information anyway, so it shouldn’t be that hard to find documents if they just did this. Another replied “no,” if organizing data had value, then business would do so (a view I share).

Professor Miller suggested that perhaps lawyers have always been bad at finding documents and now still are, so what? A classic Socratic question but I was surprised to hear one panelist agree, saying what documents are found matters not since only a tiny percent are used at trial: we only need the important items, collections have much duplication, and litigators have always had nagging doubts about missing something critical. I can’t square that view with mounting the best case possible and fulfilling production requirements.

That challenge of finding documents led Justice Breyer to express concern about the cost of EDD. If reviewing documents is so expensive, then we limit access to justice to those who can afford EDD, namely just big companies. An audience member shared this concern, saying that his small business clients can no longer litigate ordinary employment matters because of EDD costs. (See also Rising Costs of E-Discovery Requirements Impacting Litigants, Fulton County Daily Reporter, 3/20/07.) A possible solution is more cooperation in the meet and confer process. Others took issue with this suggesting it is utopian; one panelist noted that the “gotcha” is no longer about the case, it’s about the discovery.

Expecting a panel to resolve these issues is not realistic. I think it’s a good sign that a diverse group of prominent lawyers came together to discuss everything from the nitty-gritty of search technology to the loftier issues of equal access. Many such discussions will be required to reach a new and better equilibrium.

Professor Arthur R. Miller (Moderator), Harvard Law School
Jason R. Baron, Director of Litigation, National Archives and Records Administration
Ron Brachman, VP of Worldwide Research Operations, Yahoo! Research
Richard Brachman, Executive Director, The Sedona Conference
Hon. Stephen G. Breyer, Associate Justice, United States Supreme Court
Julia Brickell, Associate General Counsel, Altria Corporate Services
Nicolas Economou, CEO, H5
Hon. John Facciola, Magistrate Judge, U.S. District Court for the District of Columbia
Anne Kershaw, Founder, A. Kershaw PC // Attorneys and Consultants
Patrick Oot, Director of Electronic Discovery, Verizon Communications
Marc Rotenberg, Executive Director, Electronic Privacy Information Center
Hugo Teufel III, Chief Privacy Officer, U.S. Department of Homeland Security
David C. Vladeck, Associate Professor of Law, Georgetown University Law Center