Litigation, especially when e-discovery is involved, can be a very costly endeavor. According to industry estimates, discovery can account for 60-80 percent of the entire litigation budget for a matter. Faced with these costs, clients are often forced to settle a case they feel they could win, since it doesn't make financial sense to proceed. This results in a loss of business for law firms and a lack of justice for the parties involved.
In the U.S. today, more than half a million lawyers actively participate in litigation. But out of that number, it's unlikely that one percent of them do proper e-discovery. Why? Because e-discovery has become too expensive and complicated for all but the largest law firms or for the biggest, most strategic cases. Yet it doesn't have to be that way. It's time to level the playing field so matters can proceed based on their merits, not whether they involve extensive e-discovery. Remember, the same rules apply to small matters as they do to the big ones.
Why Clients Settle
There are good reasons that nearly 99 percent of litigating attorneys are not conducting e-discovery. The current litigation environment discourages it. On the law firm side, solo practitioners and small law firms often lack the staff and resources to purchase and master expensive technology that could allow them to conduct e-discovery on an economical scale.
Clients face similar challenges. Companies of all sizes are often faced with small litigation matters that they feel they could win. Yet it makes no financial or strategic sense to defend these "junk cases," since the e-discovery costs would not be proportional to the amount at stake.
For years, it seemed like this dynamic was only growing more challenging, even if it flies in the face of how the system should work. The Federal Rules of Civil Procedure Rule 26(f) specifically calls for both sides to hold a Meet and Confer to hammer out discovery plans and other issues and to attempt "in good faith to agree" on a proposed discovery plan.
However, many litigants still use the cost and burden of discovery as a weapon against the other side. They may demand enormously broad e-discovery parameters from their opponents in order to force a settlement. Their e-discovery plan may largely consist of a "data dump," where they hand over huge numbers of files that the other side must frantically try to comb through in a very limited time frame.
In many cases, judges let litigants get away with this tactic. While some members of the judiciary have become highly sophisticated about e-discovery tools, these judges are often the exception. Many judges still don't understand how technology can be used in a defensible way to limit costs and effort during discovery. They may be reluctant to enforce rules that would force both parties to the table to negotiate discovery plans in a timely, good-faith manner.
The current business model for most e-discovery tools also doesn't make it affordable to proceed with smaller cases. Software is often complicated and requires extensive training, which solo practitioners and smaller firms can't afford. Many third-party software providers have pricing structures that make it prohibitively expensive to ultimately produce only a small number of responsive files.
Making E-Discovery Affordable for Every Case
Fortunately, attorneys interested in getting justice for their clients don't need to completely give up and walk away from small cases or encourage their clients to settle. There are now options for cost-effective, proportional e-discovery, even on a small scale, that all attorneys can add to their toolkits.
When exploring this type of technology, attorneys should look for several important features that will allow them to proceed with e-discovery affordably and efficiently. The technology must be fast, inexpensive and easy to use. Attorneys should look for software that allows the client to only pay for the results they get, not the number of files they start with. Some tools also allow attorneys to get a snapshot of their data before they have to collect it, significantly reducing time and costs throughout e-discovery.
The current legal environment has made it difficult for attorneys at small firms to compete with larger rivals. It also makes it more difficult for organizations to pursue smaller cases based on their merits, not on the costs of discovery. Today, though, it's no longer necessary to settle cases that should be winnable. Now the playing field can be leveled to allow law firms of all sizes to tackle cases without regard to the logistics of the e-discovery work involved. It will also allow clients to get justice for their legal issues.