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.