As a frequent presenter on the topic of e-discovery, I am often approached by a member of the audience at the conclusion of the seminar. Typically, the fellow attorney listened intently throughout the session and generally seemed to “get it”—in other words, he or she recognizes that 99 percent of complex litigations involve e-discovery. Throughout the presentation, the lawyer nodded in agreement during my remarks concerning e-discovery's ethical mandates and our sophisticated clients' increasing demand for litigation efficiencies. Yet, now, in the emptying conference room, my colleague's demeanor shifts from agreeable to slightly agitated. Within moments after introducing himself, the lawyer shakes his head and bluntly states, “I believe e-discovery is ruining litigation.” My response, a simple “Why?” most often provokes one of three responses: 1) “There is too much data and too little time”; 2) “Discovery costs are crippling and the number of discovery gigabytes contribute as much to the decision to litigate as do the merits”; or 3) “Nowadays, only large firms can handle complex litigation because they have the manpower.”

There is no arguing that the Information Age provides challenges for litigators. Our clients are creating and storing information at an unfathomable pace. Simply locating relevant documents can be a challenge, as the information now resides in multiple places in a multitude of forms and there is too much of it. The volume of electronically stored information (ESI) and liberal discovery standards cause stress for most lawyers who do not consider themselves e-savvy and yet must answer to clients' more-for-less challenge and demands for fixed document discovery budgets.

True, lawyers can counsel their clients on prelitigation data minimization to reduce information hoarding and lower information expenses, however, until information governance protocols are implemented and enforced, massive discovery datasets will continue to be the norm. In sum, the volume, variety and velocity of discovery data cause enormous tension between the lawyers' obligations to discover and disclose relevant information and the clients' understandable fear of unbridled cost and inefficiencies. Something must change.