The costs of civil discovery in the computer age appear to be prompting divergent responses by the federal and New York state courts. These differences, which are still evolving, could have significant implications for litigants and lawmakers.

Litigants with a choice of forum should consider these differences in selecting which court system best suits their objectives. And lawmakers should monitor these differences to assess what rules best reconcile the often competing goals of ready access to the civil justice system, full development of the facts relevant to the case, and the efficient, cost-effective resolution of the parties' dispute.

The costs of electronic discovery are well-known and have received ample coverage throughout this decade, in this publication and others.

The source of these costs is society's increasing reliance on the electronic creation, transmission and retention of information, especially in the corporate context. Because information is so easily created, kept and copied, the volume that is available and potentially relevant to a dispute had ballooned geometrically.

While these costs can be somewhat controlled by the creative use of technology and counsel's use of sound management principles in managing a document review, there are limits. The application of classic liberal discovery principles can still require the production of hundreds of thousands or even millions of “documents,” where in the past the same case would have involved discovery into a small fraction of that number.

Retaining and collecting this information is by itself extraordinarily expensive, even when the most efficient methods are employed. And on top of those costs, attorneys still must review the collected material for responsiveness and privilege, which can be prohibitively expensive for even a middle-sized case that is well managed. These costs can be so large that they have recently been blamed for tamping down the usual increase in litigation that accompanies an economic recession.

These increased costs have fundamentally changed the cost-benefit calculus that had informed many of the rules of procedure applicable in civil cases. Lawmakers accordingly have responded by seeking to recalibrate the rules to reflect the new reality.

In the federal system, there have been changes in the rules of discovery and evidence that apply once a case is past the threshold pleading stage, as well as recent changes by the U.S. Supreme Court in the standards that apply even to the commencement of a potentially burdensome action. And in the New York state system, there has been increasing attention to the application of existing discovery rules in the electronic context.

These changes are creating, or at least highlighting, important differences in how the two court systems address the problems of electronic discovery.

Continued at Legal Technology – Two Roads Diverge in E-Discovery Costs.