E-discovery (as it is referred to in the U.S.) or, more accurately, e-disclosure (as it is referred to here, post the Woolf reforms), has received very negative press, mainly due to the huge costs associated with it. But, when all is said and done, is it really that bad?
In examining this question, we must distinguish between the position in the U.S. and here in England and Wales. Either side of the Atlantic, parties will go through similar steps to preserve, retrieve, process and review their electronic documents. However, U.S. courts have imposed headline-making sanctions in a few cases where the discovery process of electronic documents has gone awry and resulting material has been damaged, compromised or gone missing altogether. In these cases, the punitive damages awarded have dwarfed the level of compensatory damages awarded for the substantive claim.
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