Early settlement is usually encouraged by the courts and welcomed by most parties involved in a lawsuit. However, it may not always be the most favorable result. This idiosyncrasy arises most when the costs of continuing litigation and adjudication on the merits outweigh those of early settlement. On the other hand, early settlement raises the risk of “encourag[ing] additional, low merit cases that might not otherwise have been filed had the company chosen to litigate existing lawsuits.”
The phenomenon of electronic discovery (“e-discovery”) has exponentially increased the occurrence of the latter result. As a result, defendants, particularly large corporations with “deep pockets,” are often forced to settle prematurely or risk incurring additional exorbitant expenses involved with responding to a request calling for e-discovery.
Practitioners have minimal guidance. Responding to an e-discovery request has been dubbed a “fishing expedition” and “mining data.” The 2006 Amendments to the Federal Rules of Civil Procedure (“FRCP”) addressing e-discovery attempted to appease the various interests involved in litigation. They do not, however, go nearly far. Recent cases have helped to fill practical loopholes left behind by the FRCP. Still, “[n]ot qualifying as ‘final’ orders, discovery rulings ordinarily are nonappealable, so few trial court decisions regarding the scope and logistics of discovery reach the appellate level.”
In addition, numerous “think-tank” organizations have formed to tackle the daunting problem of e-discovery. However, their solutions are merely suggestions that practitioners and courts may, but do not have to consider and implement. Furthermore, although numerous bar publications and conferences address e-discovery, it is yet to draw widespread interest from scholars. In reality, cases are won and lost in discovery; more academic focus on discovery decisions is critical.
In sum, “there [is] waste and inefficiency in e-discovery, largely driven by fear and ignorance.” The current situation seems hopeless. “The information explosion threatens the legal profession and the administration of justice itself.” Clear, uniform and binding guidelines that reflect and respond to the e-discovery experiences of practitioners, the judiciary, and other major players in civil litigation are necessary to tackle the phenomenon of electronic discovery.
- electronic discovery,
Available at: http://works.bepress.com/joanna_slusarz/1/