An EDD Dilemma

Tom Allman, senior stateman of the EDD world, writing in Daily Report Online, observed that
"Recent decisions in Qualcomm v. Broadcom—sanctioning party and counsel for discovery misconduct and referring counsel to state bar and remanding for further proceedings—have thrown into bold relief the complicated issues of electronic data discovery compliance." Indeed, this is just one manifestation of the growing crisis -- yes, crisis -- in discovery and case management in federal courts. Court are imposing broad and sometimes unrealistic burdens on house counsel and outside counsel, seemingly often requiring that every "haystack" be searched to find the discoverable "needles".

In the paper world, it was sufficient to identify the custodians who might have relevant documents, locate their file cabinets, and conduct a reasonable search to find potential evidence. In the electronic world, those file cabinets are often immense, filled with hundreds of thousands of documents. Short of eyeballing each document, can it be safely said that "all" relevant documents have been found?

Greater balance is necessary if we are going to prevent the system from collapsing under its own weight.