Migrated from eDJGroupInc.com. Author: Barry Murphy. Published: 2011-12-21 06:25:22Format, images and links may no longer function correctly. At eDJ, we’ve been thinking a lot about the recent Congressional Hearing on The Costs and Burdens of Civil Discovery.  Being deeply involved in the eDiscovery market, we hear every day from companies seeking to make discovery a more efficient process.  We also work with companies seeking to put in place proactive information governance (IG) initiatives with the ultimate goal of making eDiscovery less of a reactive, expensive burden.

The Congressional Hearing called a number of witnesses:

  • Rebecca Love Kourlis, Executive Director, Institute for the Advancement of the American Legal System, University of Denver
  • William Hubbard – Assistant Professor of Law, University of Chicago Law School
  • William Butterfield – Partner, Hausfeld LLP
  • Thomas Hill – Associate General Counsel, Environmental Litigation and Legal Policy, General Electric Company

Kudos to the Subcommittee for both corporate and law firm representation amongst the witnesses, but where are the true eDiscovery experts and practitioners on the witness list?  I would have expected at least some representation from consultancies like KPMG, Huron, or Navigant; these consultants could testify from experience across many types of corporations and they have real experience with the tools that can potentially ease the eDiscovery burden.

As Greg Buckles pointed out in his post earlier this week, many of the witnesses cited numbers without it being clear where the real empirical data is coming from.  For examples, William Hubbard’s “eDiscovery cost of $12,000 per case is based on just four unnamed Fortune 500 corporations.”  Adding consultants to industry analysts to the witness list might give the subcommittee a broader perspective with more objectivity.  Think about the perspective of the witnesses.  Butterfield is a lawyer at a law firm – of course he thinks rules changes are problematic; part of the job of lawyers is to interpret vague rules in the way that most benefits them in a given matter.  Just as Hill, a corporate lawyer, is of course going to think that the current rules lead to “wasteful document preservation” because the cost of that preservation affects his company directly.

What stood out to me the most about the Congressional Hearing was the focus on specific matter costs.  As my colleague Mikki Tomlinson commented to me, “The matter-based discussion is simply because the judicial system has no rule-making power other than as it relates to cases.”  Still, it seems to me that a matter-based focus is too much of a vacuum in which to consider the burden of eDiscovery.  I would have liked to see someone from General Electric testify as to the costs of proactive information governance to address eDiscovery (and then talk about the ancillary benefits like better knowledge reuse that result from those projects).

It is good to see a Congressional Hearing like this taking place.  One of the main complaints I hear about the rules governing eDiscovery is a lack of specification and prescription.  Of course, case law will help to bring more granularity to the rules as time goes on.  But, one thing is clear – most of eDJ’s readers don’t believe that the burden will be reduced, so I don’t advice anyone to use the uncertainty over the rules as an excuse to sit around and wait instead of addressing eDiscovery and information governance head-on right now.

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