The Editor interviews Alan S. Naar , Vice Chair of the Litigation Department of Greenbaum, Rowe, Smith & Davis LLP. Mr. Naar is also Chair of the Alternative Dispute Resolution Practice Group at Greenbaum, Rowe, Smith & Davis LLP.
Editor: Describe cases in which extensive e-discovery was threatened but which were settled in order to avoid discovery costs.
Naar: E-discovery is a fact of life in all litigation today and has been for some time now. One trend is to notify an adversary at the time litigation is filed, or even earlier, of the need to establish a litigation hold – if one has not already been put in place because of the anticipation of litigation – regarding certain documents and other materials maintained or stored in both hard copy and in electronic format. Litigators no longer wait until initial discovery requests are served, and rule changes now require counsel to meet and confer immediately upon the commencement of litigation to discuss issues involving electronically stored information (“ESI”). As a result, the cost benefit analysis engaged in by parties and their counsel as to whether to litigate or settle occurs earlier in litigation or even before litigation is filed. The costs and anticipated costs of e-discovery has thus had an impact on the settlement calculus. While the cost of discovery has always been a significant factor in the determination of whether or when a case should be settled, the costs related to extensive e-discovery have further pushed the scales toward settlement even when the producing party can make a convincing argument that all or some of those costs should be shifted to the party seeking the discovery. At the same time, parties seeking extensive e-discovery argue, based upon discovery of the adversary’s computer systems and back-up protocols, that the discovery sought should be easier and cheaper to produce because it doesn’t have to involve the production of a room full of boxes of hard copy documents, but can be burned to computer disks at the push of a button. These issues have brought about new twists to traditional issues such as the inadvertent production of privileged materials and the entry of protective orders. As a result, lawyers are spending more and more time speaking to their clients, their adversaries, and the courts to resolve the multitude of issues that now arise because most documents and materials are generated and stored electronically. It is unclear whether recent calls by reputable groups such as the American College of Trial Lawyers for fact-based pleading, limited discovery, and mandated proportionality will have an impact on the run-away train of e-discovery. One thing remains clear: an even greater percentage of cases are likely to settle because of e-discovery issues.
[continued] The Impact Of E-Discovery On Litigation Trends.
