I have discussed before electronic discovery and the corresponding amendments to the Federal Rules of Civil Procedure, and in particular the need to consider costs of the required discovery relative to the benefits to the requesting party. Personally, I am of the opinion that the scope of the rule changes combined with the massive changes in document creation and retention that computer technology has wrought requires a change in the collective mindsets of litigants and the courts when it comes to discovery. I think few will disagree that the modern history of discovery has been driven by a presumption that all documents that might be relevant ought to be produced, with no real corresponding emphasis on whether or not any particular set of documents really are sufficiently probative to justify production. I am of the opinion that electronic data and the costs of producing them have changed that, and that courts now need to move away from their presumption that a party should be required to broadly produce documents so long as the requesting party can make a rational explanation as to why they may be relevant, and to a fact based analysis of whether the requesting party’s justifications for the production warrant imposing the costs of large scale electronic production on the other party. In essence, it seems to me that courts should expect testimonial evidence, such as affidavits, establishing the relevance and importance of the electronic data being sought, before ordering production of electronic data, in cases in which a party resisting discovery has raised documented problems of cost in producing the electronic data.

Given the short judicial history of this issue at this point in time, I am always glad to find evidence that I am not alone in thinking this. This article lays out exactly the cost problem created by the electronic discovery rules, and suggests that an analysis of costs needs to play a central role in the development of how these rules are applied.