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The Legal and Economic Implications of Electronic Discovery

The Legal and Economic Implications of Electronic Discovery: Options for Future Research

James N. Dertouzos
Nicholas M. Pace
Robert H. Anderson
Copyright Date: 2008
Edition: 1
Published by: RAND Corporation
Pages: 38
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  • Book Info
    The Legal and Economic Implications of Electronic Discovery
    Book Description:

    The growing volume of electronically stored information has led to concerns that requests for electronic discovery (e-discovery) can increase litigation costs, impose new risks on lawyers and their clients, and alter expectations about likely court outcomes. The authors provide an overview of the issues involved and outline five avenues for future research on the legal and economic implications of e-discovery.

    eISBN: 978-0-8330-4599-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-ii)
  2. Preface
    (pp. iii-iv)
  3. Table of Contents
    (pp. v-vi)
  4. Figure and Tables
    (pp. vii-viii)
  5. Summary
    (pp. ix-xii)
  6. Acknowledgments
    (pp. xiii-xiv)
  7. Abbreviations
    (pp. xv-xvi)
  8. SECTION 1 Introduction
    (pp. 1-6)

    Discovery is at the very heart of the civil process in America. Access to relevant evidence is central to the “search for truth.” The discovery process is performed ostensibly in preparation for trial, but in fact the information obtained is a key factor in driving negotiated resolutions of disputes. In addition, discovery can be a major cost driver.¹ Given the importance of discovery, it is not surprising that litigants and the lawyers who represent them are struggling in their efforts to cope with the changes in the legal landscape due to the evolution of information technologies.²

    Today, virtually all information...

  9. SECTION 2 The Current State of E-Discovery Law
    (pp. 7-12)

    Despite all the concern expressed over e-discovery, there currently exist few legal standards to help provide benchmarks for litigants. In most other areas of the civil law, there is an extensive body of authority on which trial court judges and practitioners can draw for guidance. However, some observers claim that, in the case of e-discovery, technology is evolving faster than the law.

    To give a sense of the dearth of appellate cases considering e-discovery issues, in December 2006 we conducted a search of the reported state and federal judicial opinions in Westlaw for the phraseelectronic discoveryor the phrases...

  10. SECTION 3 Exploratory Model of Case Outcomes
    (pp. 13-18)

    The previous discussion makes it clear that e-discovery, by changing costs, creating new risks, and altering the flow of information, could alter litigant incentives to file suit, settle cases, and go to trial. For example, several interviewees claimed that the significant burdens of e-discovery outweighed the benefits of going to trial, especially in low-stakes cases. Thus, they were fearful of an increase in lawsuits of questionable merit in which defendants would settle rather than incur the costs of discovery. Viewed from another perspective, plaintiffs may choose to settle cheaply, dismiss their own cases, request less, or refrain from filing in...

  11. SECTION 4 Proposed Research Agenda
    (pp. 19-22)

    In this section, we describe an integrated research agenda related to electronic discovery. The five separate projects are necessarily interdependent. This is because findings from individual projects represent critical input for the policy analysis proposed in other complementary efforts. In addition, many of the proposed research tasks, such as case studies and data collection efforts, are common to multiple projects. The section begins by providing a conceptual overview that sets the stage for the subsequent discussion. The paper concludes with a description of proposed research projects.

    As the previous discussion suggests, a comprehensive assessment of the economic and legal implications...