Electronic discovery is not a topic typically associated with merrymaking.  Instead, e-discovery more typically brings to mind thoughts of risk, sanctions, cost and other assorted ills that are not on anyone’s holiday present wish-list.   But as we approach the end of the year and enjoy the warm glow of holiday spirit we should focus on positive developments in the field.   The e-discovery “community” should look back with some sense of satisfaction at the improvements it has worked so hard to achieve in the arena of professional awareness and education about e-discovery.  In recent years, the increase in the numbers of lawyers and legal professionals becoming aware of and in even sophisticated about e-discovery issues stands out as a positive trend moving the field forward in the right direction.  No one would suggest that there isn’t a lot more to be done; however, the empty part of the glass should not make us blind to the part that is filled.

In the early days of e-discovery, when hardly anyone could pronounce the name “Zubulake” properly, it was a tiny group of visionaries who were familiar with the issues involved in preserving and discovering what we now know affectionately as ESI.  Those who followed the development of case law in the field were filled with a sense of mission in educating professional colleagues about the potential risks of e-discovery and the how precautions necessary to mitigate them.  Conferences about the subject started to proliferate, and so did written materials, including entire books.  A community of interested and knowledgeable professionals could be identified repeatedly lecturing at CLE events and bylining legal practice journal articles.

As the spoliation cases started to pile up and the cost of e-discovery became a recognized and significant part of litigation costs, the movement to amend the Federal Rules of Civil Procedure to explicitly address e-discovery issues picked up steam.  Given that imminent changes were in store for the basic procedural rules governing all cases in federal court, increasing numbers of lawyers saw the need to understand the implications of electronic discovery.  The CLE courses on e-discovery multiplied like locusts, and at the apex multiple conferences would occur on the same day in different cities across the country.

This trend continued with the adoption of the 2006 amendments to the FRCP and ran right through their enactment as increasing numbers of litigation professionals who had succeeded in avoiding the plunge into e-discovery had to face the reality of its explicit recognition in the FRCP.  Many significant continued to unfold -- technical developments in areas like search and retrieval, and also legal developments in terms of case law, state rules and Federal Rule of Evidence 502.

More recently, with difficult economic conditions holding sway, the pace of CLE offerings about e-discovery has palpably slowed.  However, an interesting development continuing to grow is the increase in the number of law schools offering electronic discovery as a distinct course.  There will soon be a new generation of law school graduates who have studied the field as part of their law school education, and the remaining dark patches of ignorance about electronic discovery will gradually disappear.

Industry surveys and real world e-discovery experience shows that the legal profession has come a long way since the early days of Zubulake v. UBS Warburg and Coleman v. Morgan Stanley.  While experts may still descry a shocking ignorance about various e-discovery issues both technical and legal, there can be no question that a significant elevation in the level of sophistication across the legal profession has been achieved with respect to electronic discovery.  As 2009 draws to a close, we can expect this salutary trend to continue, and hopefully experience a reduction in the sanctions and sanctionable conduct that have so disproportionately marked the e-discovery jurisprudence. 

Happy Holidays!

About Adam I. Cohen

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