May 17th 2007
From The Economist

The courts are struggling to cope with information technology

A CHICAGO law firm recently put up a billboard with the slogan “Life’s short. Get a divorce.” Also on the billboard were pictures of a hot babe in her underwear and a hot hunk in a towel–a sample of the delights that await the newly single. This is the kind of lawyer story that makes the evening news. Deeper, broader problems with America’s legal system tend to be ignored. Electronic discovery is one.

What’s that? Well, let’s say you follow that Chicago law firm’s advice and sue for divorce. And let’s say your soon-to-be ex-spouse gets angry. His or her lawyers might then demand to inspect your hard drive so that they can, for example, acquaint the court with your love of porn before it decides who keeps the children.

As technology changes the way people communicate, the legal system is stumbling to keep up. The “discovery” process, whereby both parties to a lawsuit share relevant documents with each other, used to involve physically handing over a few boxes of papers. But now that most documents are created and stored electronically, it is mostly about retrieving files from computers. This has two important consequences.

First, e-discovery is more intrusive than the traditional sort. Catty or salacious gossip, the kind that was once swapped at the water cooler, is now often committed to e-mail. This is easy to subpoena and virtually impossible to erase. There is always a back-up somewhere, so even if you delete the e-mail privately denigrating a stock you are publicly urging your clients to buy, it will still be read out in court. If your firm is sued for sexual discrimination, expect the plaintiff to demand all the lewd e-mails your male executives have ever swapped with each other.

Second, e-discovery is more burdensome than the old sort. In the old days, if a big firm was sued, it might have to produce half a million documents, says Malcolm Wheeler, a lawyer who represents big corporate clients in Denver, Colorado. Now, it would have to produce many times that: e-mails, attachments, voicemail recordings and so forth. This can be fiendishly expensive. In a recent case, says Mr Wheeler, his client had to pay 31 lawyers to spend six months ploughing through electronic documents just to figure out which ones ought to be handed over the plaintiff. There is a danger, he says, that big firms will settle with frivolous plaintiffs just to avoid the costs of disclosure, which in turn will encourage more frivolous lawsuits.

Mr Wheeler ranks e-discovery as “the single most significant change to the legal system” since he left law school in 1969. Richard Baer, the top in-house lawyer for Qwest, a telecoms firm, will not go quite so far, but he agrees that it is a problem.

He thinks his firm spends at least 25% more on legal fees relating to discovery than it did two years ago. What worries him more is that the rules are so unclear. Do you have to save every version of every document and every fiddle to a computer-aided design? How do you decide what is relevant?

On May 16th a think-tank called the Institute for the Advancement of the American Legal System, at the University of Denver, suggested some guidelines. One is that the rules need to be clearer, especially in the states. Another is that judges need to familiarise themselves with the relevant technology, so they can make informed rulings as to whether a disclosure request is reasonable. They should also learn about, and alert litigants to the existence of, software tools that allow quicker searches for relevant documents. If judges understand what e-discovery is about, they are more likely to issue coherent precedents. If not, the legal system risks being over-loaded.