I have written before, probably on more than one occasion, about the fundamental philosophical problem underlying electronic discovery, which is that lawyers and courts continue to view it through the traditional rubric of discovery, one formed in the world of paper documents, interrogatory answers, and deposition testimony. As I have discussed in the past, battles over scope, relevance, costs and burden in that context had some built in controls and limits, namely the actual range of existing files, documents and witnesses. Thus, except in the most extreme and outlier cases, allowing broad discovery wouldn’t overwhelm any party, back in the days of paper. That’s not the case today with electronic discovery, which, as we all know, can expand exponentially, without the type of built in, apparent physical limitations that exist with paper discovery.

As a result, when parties begin seeking electronic discovery under the old rubric of it should be produced if it could possibly lead to evidence, and courts look at an electronic discovery dispute through that old prism, you end up with a presumption of production and a correspondingly broad – and expensive – electronic discovery mandate. It is understandable that lawyers and the courts look at electronic discovery through this traditional frame of reference, for we are all products of our training and experience, and neither the federal rules nor the developing case law in this area push very strongly against this traditional approach to discovery. But the costs of applying the traditional discovery thinking to electronic discovery problems are high, because assuming the relevance of discovery and allowing unfettered electronic discovery without strong controls guarantees broad electronic discovery and high costs, given the expense of that area of discovery. The right approach and antidote to this, I have said before, is a shift away from the traditional thinking on discovery, and towards hands on judicial control of the process, one in which cases are staggered whenever possible to avoid electronic discovery into areas that, as the case plays out, may become unimportant (think of, for example, holding off on damages discovery until liability is proven), in which a party seeking electronic discovery that could be burdensome is required to really show an evidentiary basis for seeking it (think, for example, of requiring deposition testimony or other documentary evidence indicating that the electronic discovery could actually hold some evidence of value before the electronic discovery is allowed), and in which a party opposing the discovery must actually prove high cost and business disruption by competent and admissible evidence.

The analogy that comes to mind for me is a Daubert hearing, conducted to test the admissibility of an expert’s testimony in advance of trial. A similar type of mini-trial type proceeding would be a natural forum for testing whether electronic discovery, when challenged by a party, is warranted. It seems a safe assumption that, over time, the amount saved by parties from the reduction in the scope of electronic discovery that would likely ensue would significantly outweigh the increased discovery costs of engaging in a mini-trial of this nature. And as for the benefits to the courts? Well, all litigators know the old saying that nothing focuses the mind on settlement like a trial date; I suspect nothing will more motivate lawyers to compromise on, and agree to, a particular scope of electronic discovery, than the possibility of having to try the issue in a Daubert like setting.

Oh, and here’s a nice article on the problem from the National Law Journal that started this reverie for me this morning.