eDiscovery is a Frankenstein of our own making

Photo courtesy of Alternet.org.

Editor’s note: Michael Simon is a former trial lawyer who has spent the last 15 years consulting on electronic evidence issues. He teaches Discovery Law and Practice at Boston University Law School and is a frequent contributor to legal publications, including Above The Law and The eDiscovery Journal. He can be reached at michael.simon@seventhsamurai.com.

First of all, thank you to the good folks at Logikcull for inviting me to post. I had planned on starting my blogging here by riffing on a prior post on the rules governing document production and how to avoid document dumps.

But that post has to wait, if only because I can’t let the FOIA fiasco in McKinney, TX pass without comment. To briefly recap, the town of McKinney threatened to charge the celebrity gossip blog Gawker $79,000 to fulfill a Public Information Act request for emails relating to the conduct of Eric Casebolt, the disgraced police officer who pulled a gun on a group of kids at a community pool party. You can read about it here: Texas Town Is Charging Us $79,000 for Emails About Pool Party Abuse Cop.

This blog previously discussed 5 ludicrous things about that demand, and they were all indeed quite ludicrous. But that post missed a larger point.

The most ludicrous thing about the $79,000 Texas Tab is this: we caused this.

You read that right. Well, if you’re part of the “eDiscovery Industry” you read that right.

eDiscovery was a solvable problem

eDiscovery is a problem that has been growing for a long time. And it is a problem that we as an industry could have solved. We didn’t. For years we have made eDiscovery complicated. We have made it expensive. We have turned eDiscovery into just another litigation tactic, another blunt object to beat the other side into submission. eDiscovery is a way to drain opposition resources, waste their time, or both.

It didn’t have to be this way. We could have made eDiscovery simpler. We could have made eDiscovery much less expensive. We didn’t.

We keep telling ourselves we have a good excuse. Just look in Law Technology News or any other legal tech trade mag the week after any major conference. You’ll without fail see a half dozen post-event interviews with “eDiscovery industry experts” complaining that the biggest problem in eDiscovery is that “lawyers don’t know enough about it” and that “they need to educate themselves more.”

Do they really? Or do we need to make eDiscovery less complicated and less expensive? These are people who mastered property law and partnership tax. If they can’t grasp eDiscovery, something’s wrong. We need to do something to fix this — not them.

eDiscovery is a barricade to justice

We all made money from this, myself included.  But how far can we keep going on like this?  How many more golden eggs can we get from that goose?  We’ve reached the point where eDiscovery is yet one more reason — perhaps the primary reason — that litigation is unaffordable, untenable.  I’ll let recently retired Judge Facciola speak for me here (since he does it so much better than I ever could):

The costs of litigation are completely out of control. Lawyers tell me of clients who must spend a million dollars a month on discovery in certain cases. That is humbling to someone whose first legal job paid $7,500 a year. The consequences of such costs are obvious—the middle class is gone from the federal courts, except when fee shifting statutes are available. Thus, federal courts find themselves in the paradoxical position of being only able to entertain lawsuits filed by the very rich and those too poor to pay the filing fee. I always said that I did not become a judge to be monitor in a playground where only the rich can play, but I fear that will be the role of my successor.  Sunrise, Sunset: Judge Facciola Looks Back and Forward

I’m not so sure that given where we are now, and the data sets with which we have to deal, whether the luxury of an adversarial system will survive. What the Judges Said: Top 10 Takeaways from 2015 LegalTech Judges Panel

There’s no way around it: eDiscovery is a barricade to justice. Can Gawker afford the $78,974.05 McKinney wants to charge them for the FOIA request?  Probably. A company that can battle it out with Hulk Hogan over $100 million dollars has the cash.

But what about the plaintiffs in a potential civil suit against the McKinney Police Department and Officer Casebolt? Do they have $79,000 to spend on eDiscovery? And what if Officer Casebolt needs ESI from the McKinney PD to defend himself in a lawsuit — or even bring one of his own claiming he was falsely portrayed? Do you think he can afford $79,000 for eDiscovery on a police officer’s salary?

Is $79,000 a reasonable cost for eDiscovery here? Is the 13 months McKinney says it needs to do this a reasonable time?

These are rhetorical questions of course. The answer is no.

And that leads us back to my original point. What is ludicrous about this whole situation — a fiasco that repeats itself again and again — is how long we’ve known that eDiscovery costs too much and is too complicated but we have failed to do anything about it. The goose laying golden eggs was nice while it lasted, but it might just be time to cook it.