log in
All Articles | Back

Member Articles


A Multidimensional Solution to the Problems of Runaway Discovery 

Published: June, 2010

Submission: November, 2010

 



In 2010, the legal services industry—and for


that matter almost every industry—faces a new


landscape that requires not only a different way


of thinking but also a different way of doing


business to ensure short-term survival and longterm


success. The body of survey and industry


data developed in the past six to 12 months suggests


that the traditional legal service delivery


model for litigation needs to be reworked.


Three key overarching considerations in


2010 for corporations are:


1. Maximizing value received from every


legal task performed;


2. Applying a “lean” process-efficient manufacturing


mentality to legal services; and


3. Moving away from the single-firm model


and retaining the most efficient outside counsel


and other vendors to handle separate


portions of processes, particularly litigation


Although corporations are focused on


reducing legal expenses, survey and industry


data all point to the same conclusion: 2010 will


be an increasingly litigious environment. The


most recent data compiled by BTI Consulting


predicts a 2.3 percent increase over 2009.


The economic turmoil of 2008 and 2009


will continue in 2010 to drive demand in both


bankruptcy and labor/employment litigation.


With changes in the regulatory environment


and anticipated GDP growth, we can also


expect an uptick in antitrust, securities, and


intellectual property litigation. Finally, class


action litigation is expected to increase in the


coming year as well.


Discovery Trends


Litigation costs and risks have increased


along with the sheer amount of litigation.


Litigation spend typically comprises twothirds


of the overall outside legal spend for


most corporations, and discovery can comprise


nearly two-thirds of these litigation costs.


As such, discovery costs dominate case


budgets and are often the single largest line


item in a law department’s budget. These


costs figure not only in cases that are tried


but also in the 95 percent of cases that never


see an opening argument at trial.


There are many causes for the pileup of


discovery costs. First, computerized data


is proliferating. Everyone now has at least


one computer. And, computer storage is so


inexpensive that no one thinks about deleting


anything until big litigation hits and every


one of those tens of thousands of items must


be processed, filtered, and reviewed.


Email is another reason for cost increases.


Email is now the primary mode of business


communication. Email is often carelessly


drafted and sent to multiple recipients who


then forward their copies to other parties.


Now, what was once a single letter (and perhaps


a file copy), can balloon into hundreds


of versions and thousands of copies.


Another factor is that new modes of communication


are surfacing every few months.


Discovery in one case in today’s environment


could encompass email, chat rooms, instant


messaging, text messaging, blogs, Facebook,


LinkedIn, and tweets. No one knows what


else will be next. It is all difficult to control,


delete, and review.


The federalization of discovery is yet


another factor. An evolving and confusing


jurisprudence has been developed by distinguished


jurists who themselves aren’t even


comfortable with floppy disks. Many judges


Of Counsel, Vol. 29, No. 6 13


cling to the very flawed assumption that, just


because something is electronic, it can be


produced and searched instantly.


Notwithstanding the attempt by some


courts to control the cost of modern-day


discovery, courts simply cannot be relied


on to control costs. Most discovery matters


are handled by judges and magistrates who


are reluctant to deny all but the most excessive


discovery requests, despite the potential


burden.


Many judges and magistrates also underestimate


the difficulties associated with


electronic data. Moreover, unlike the case


where parties can point to hundreds of boxes


of paper documents, litigants today are often


unable to determine the full burden of electronic


discovery without spending tens of


thousands of dollars just to put electronic


discovery in a reviewable format.


The cost of discovery is beginning to


surpass loss exposure as a strategic consideration


in litigation. Indeed, some parties


are using the prospect of discovery costs to


extort settlements in weak cases. Some commentators


have suggested that these costs


even threaten to bring about the demise of


the right to trial.


Additionally, many litigants are attempting


to create claims of discovery abuse, failure to


implement litigation holds, and spoliation.


They are seeking Rule 37 sanctions, default


judgments, adverse inferences, and punitive


damages. Most corporate legal departments


surveyed agree that actively managing discovery


is the best way to move the focus back


to the merits of the case.


Please  Click Here to view full article.


 



Link to article

 

MEMBER COMMENTS

 

 

WSG Member: Please login to add your comment.

    Disclaimer

WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

HOME | SITE MAP | GLANCE | PRIVACY POLICY | DISCLAIMER |  © World Services Group, 2020