November 17, 2010
Hardaway, Berger, and DeField on E-Discovery and Rule 26
Robert Hardaway (University of Denver), Dustin Berger (Columbia University), and Andrea DeField (University of Denver) have posted E-Discovery's Threat to Civil Litigation: Reevaluating Rule 26 for the Digital Age to SSRN.
Changes in technology allow litigants to create and store much more information than has ever been possible before. Unfortunately, the costs of searching through litigants’ ever-growing sources of electronically stored information threaten to undermine the civil litigation system. Indeed, we argue that a typical civil litigant cannot sustain the costs of the discovery-related litigation. As a result, many civil litigants will never be able to obtain a judicial resolution of the merits of their case. The Federal Rules of Civil Procedure, even as amended in 2006 specifically to address the costs and scale of e-discovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants’ cases. The solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery in favor of a rule that would equally distribute the costs of discovery to the requesting and producing parties. While other commentators have proposed a variety of solutions to this problem, the other proposed solutions are generally inadequate because they fail to address the underlying cause of the rising costs and scope of e-discovery. We demonstrate how mandatory cost sharing gives all parties the incentive to control the cost and scale of e-discovery. We also show that some state and many foreign jurisdictions have rejected the presumption that the producer pay for the costs of discovery, thereby demonstrating that the producer-pays presumption is not essential to the operation of a civil justice system.