Electronic Discovery and the Litigation Matrix

The impact of the technological revolution on the operation of the discovery system in the federal courts has been dramatic. The enormous increase in storage capacity and communication that the use of computers in the corporate world has brought about has correspondingly increased both the burdens and stakes of the discovery process. This Article considers the extent to which these dramatic practical changes have created a need to develop a legal framework especially for the discovery of electronically stored information. Because the burdens of electronic discovery are likely to be substantially more severe than those involved in traditional discovery, the drafters of the Federal Rules of Civil Procedure or the courts should adopt a conditional cost-shifting model solely for use in the electronic discovery context.

Ultimately, the model must be informed by the deep structural values underlying the litigation system.