Complex commercial litigation is costly and disruptive. That has long been the case, but over the past 20 years those costs—particularly the costs of discovery—have grown exponentially. Much has been written about this issue, and many competing solutions have been proposed, some of which are embodied in the proposed amendments to the Federal Rules of Civil Procedure published for comment this summer. While there is substantial disagreement about the right way to combat this growing problem, there is no real question about its source: the explosive growth of electronically stored information (ESI) in organizations large and small, and the failure of discovery rules and practices to account for that change.
Of course, ESI has been a major component of discovery for decades, but 20 years ago a company tasked with collecting its ESI faced a fairly limited task: For each relevant employee, it might have to search a group of electronic documents, an internal email address and calendar, and perhaps some relevant internal databases. Now, those same employees likely use several email addresses (personal and corporate), electronic calendars and contact lists, text messaging, instant messaging, voicemail, BlackBerry services (including messaging, calendars, contacts and emails), electronic documents (stored on local computers, flash drives, company servers and in the cloud), social media accounts, websites and a host of complex proprietary data sources maintained by the company or its vendors. All of these resources—and their backups—are potential sources of discoverable ESI, and in many large organizations, there is no single person who can even identify them all, much less search them or collect from them.
