American litigation has been transformed in the last 10 years by the tectonic collision of two factors: 1) exploding volumes and sources of data, and 2) the prevailing American philosophy of full pretrial disclosure, a posture that is unique in the world.
While the increase in Big Data was inevitable, the costs, risks, and anxieties that now surround pretrial disclosure were ratcheted up by a common law development that began innocuously, but now dominates the state and federal litigation landscape: the transformation of the ancient prohibition against destroying relevant information, into a new requirement that litigants take affirmative steps to preserve everything discoverable as soon as they “reasonably anticipate” a litigation. Spoliation changed from something a party did — destroy or hide crucial evidence — into something the party failed to prevent: the prejudicial loss of any piece of discoverable material.
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