B. Subject to abuse;
C. So expensive that it can force settlements even where the merits don’t warrant it;
D. An aspect of civil procedure that is still waiting for the courts to create a jurisprudence that will properly manage its potential costs and complexity;
E. Good only for vendors;
F. All of the above.
If you guessed F, you have been reading my posts over the last couple of years on this topic. Simply put, there is obviously an appropriate realm and scope for what lawyers refer to as electronic discovery – who hasn’t found something useful in an adversary’s deleted emails? – but the federal rules are written so broadly that in any given case, electronic discovery is likely to be much broader, more expensive, and more unworkable than is warranted by the value of the case or the value to accurate adjudication of the electronic discovery itself. I have talked many times on this blog about the need for the federal courts to develop a jurisprudence for electronic discovery that takes into account all of these issues before electronic discovery is allowed and relies upon those factors to focus the scope of electronic discovery and keep it as narrow as is possible; absent such an approach, electronic discovery, I have argued before, is going to become the monster that eat St. Louie, or more literally, the procedural rule that doomed litigation, already expensive, from being an even marginally effective tool for resolving complicated disputes. This will be too bad, because as readers of my posts on arbitration know, I am not a big fan of that method of alternative dispute resolution for resolving complicated cases and generally believe that American courts provide as good a forum for resolving disputes as anyone has yet devised.
Anyway, it looks like these concerns about electronic discovery are moving into the mainstream, as is reflected in this report, which echoes these concerns.