Shaken Proportionality & Enterprise Accountability, Not Stirred, Might Be the Electronic Discovery Martini

Trial Lawyers of America, via the American College of Trial Lawyers, recognized that the trial system of America is too expensive and that resolving matters takes too much time.  Trial lawyers also recognize that expense exceeds the actual value in all but the most important matters.  Several organizations, including the ACTL and the Sedona, propagate to reformulate the litigator mindset from combative to cooperative.

The great trial litigators need to resist the temptation to “out cost” their opponents. However, the courts deliver the message via the application of the construct of “techno-legal proportionality”.  The axiom rests on the precept that the value of the information sought exceeds the cost of extraction, respective to the issue in dispute, accounting for the societal benefit catch all.  The success of this requires that attorneys and Judges be more informed about the technological side, so that informed common sense can be applied.

The electronic discovery problem is exacerbated by the high costs of identifying, collecting, preserving and reviewing information.  The questions are, “Why do organizations today have so much information?” and “Why shouldn’t an organization that preserves less information be rewarded?” Companies might be generating more information than ever before, but should the cost abdicate them from responsible and effective enterprise information management principles? It seems that the problem of electronic discovery might actually be a symptom of a larger problem of digital information responsibility.

Shouldn’t companies that have high discovery costs be forced to ante up? If they did, economics would dictate the evolution of new technologies and the adoption of a smarter information management infrastructure.    No lawyer enjoys mindless document review.  The money earned from review is nothing to sneeze at, but increased job satisfaction on the part of lawyers and substantially lower legal bills for clients might be compelling enough to drive lawyers to forgo the additional revenue.

Finally, it seems to me that companies adopting technologies that allow them to effectively manage their information so that there is less retained and that which is retained can be seamlessly collected, preserved, and reviewed would save millions and millions in legal and technology fees. Of course, selecting the right solution and synchronizing the solution with a company’s policies is critical, but it is certainly feasible that most lawsuit-prone organizations would show a fast ROI by selecting the right technology tools.

Daniel B. Garrie, Esq. has a B.A. and M.A. in computer science and is an e-discovery neutral and special master with Alternative Resolution Centers, available internationally. He can be reached at (310) 284-8224 or (800) 347-4512 and at DGarrie@fsrdg.com.