SPRING 2018 TODAY’S GENER AL COUNSEL
E-Discovery
The Search for a Cure for E-Discovery Addiction By Robert Owen, Frank Nolan and Trevor Satnick
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E
xperts estimate that as much as 16.1 zettabytes of data existed in 2016. To put that number into perspective, that is enough data to cover the entire planet in Microsoft Word pages 122 times over. This data explosion has upended a number of historical practices and procedures. The discovery process in civil litigation has been no exception. Litigating parties often face significant expense when they have to preserve, collect, process and review large data sets.
If a party fails to take those steps, it can face crushing sanctions, since courts have not taken kindly to spoliation of potentially relevant data. These harsh realities helped spur the 2015 amendments to the Federal Rules of Civil Procedure (FRCP), which aimed, in part, to streamline e-discovery. But e-discovery is still far from perfect, and still carries risks and expenses for litigants. This article explains how the discovery process became the behemoth
it is today, provides examples of how e-discovery will continue to evolve with technological advances and offers suggestions for change, which may help to prevent the costs associated with discovery from continuing to spiral out of control. HISTORY OF DISCOVERY
The FRCP were adopted in 1938. Before then, civil litigation was resolved without parties gaining pretrial access to poten-