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Editor's Note: This is the last of seven installments on the electronic discovery rules. To view an index of the installments, click here.
Much has been written on the expense, burden, and delay that responding to requests for electronic discovery entails. Some cost and complexity exists because many litigants, lawyers, and—some would say—especially judges are new to the problems created by the intersection of litigation and modern information technology. The result is the unusual circumstance of problems that are simultaneously ubiquitous and unfamiliar. Discovery problems are likely to remain unfamiliar because technology will change in ways we cannot predict with any confidence.
Lawyers and judges are collectively wringing their hands over the continuing decline in the number of trials, especially jury trials. The factors that contribute to this are many and varied, but there is a consensus that the costs and delays of civil litigation—largely due to discovery—play a significant role. The frequency of changes to the discovery rules—in 1983, 1991, 1993, 2000, and again in 2006—reflects an ongoing struggle to find fair and reliable means to contain discovery and keep it reasonably related to the needs of particular cases. Electronic discovery, with its increased costs, delays, and complexities, makes it harder and more important to do that effectively.
This challenge for judges is important and pressing. Close judicial involvement and supervision is clearly needed. Yet that judicial supervision must strike a balance between effective control on the one hand and the practical limits on discovery in particular cases on the other. Making unrealistic demands on litigants and lawyers may hasten settlement but does not meet the challenge of making discovery a means to the end of resolving cases based on the merits.
For the lawyers, the problem is to engage and educate the judges about how the parties’ computer systems may affect discovery limits and obligations. For the judges, the problem is to supervise in an effective way that does not impose unrealistic and unduly burdensome demands on the lawyers and litigants. The amended rules provide tools and procedures for lawyers and judges to do these jobs better. It is not an exaggeration to say that the ability of the civil justice system to deliver a fair, efficient, and cost-effective way to resolve disputes significantly depends on how litigants, lawyers, and judges meet these challenges.
Lee H. Rosenthal is a United States District Judge for the Southern District of Texas. Rebecca Bolin, Yale Law School ‘06, provided helpful assistance and suggestions.
Preferred Citation: Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116 Yale L.J. Pocket Part 167 (2006), http://thepocketpart.org/2006/11/30/rosenthal.html.
A Few Thoughts on Electronic Discovery After December 1, 2006
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