In 2009, the American College of Trial Lawyers published a report by a task force on discovery. The overall conclusion was that discovery was destroying the civil judicial process: It costs too much, and can become an end in itself. The report stated that the electronic discovery process needed a serious overhaul. It included a comment from an attorney that the electronic discovery process is "a nightmare." That was in 2009. Nightmare is a mild description in 2013.
E-discovery and the rules for its application are spawning litigation, multiple hearings, conflicting rulings from courts, and an increasing number of consultants and litigation attorneys who make the bulk of their living from it. Several years ago, in a spoof on legal trends published in The Philadelphia Lawyer, the Philadelphia Bar Association's quarterly magazine, a fictitious lawyer was described as being so successful at discovery that he was elected as a fellow of the American College of Discovery Specialists, and one well-known law school was offering a master's degree in discovery. Although the comments were tongue-in-cheek, they are not far off. E-discovery is a gathering storm that will soon cloud the pretrial phase of civil litigation in both federal and state courts. It affects the criminal process as well, especially in grand jury investigations of white-collar corporate crime.
