What Is the Goal of E-Discovery?

With LT West upon us I thought it would be interesting to see what people are talking about on the web with regards to legal technolgy.  As always, Ron Friedmann had a thought provoking post, which he called E-Discovery Goal: Win or Avoid Disaster?  . In it, he posed the theory that lawyers have forgotten the real goal of e-discovery, which he says is winning the case,  and are more focused on simply avoiding disaster. 

Ron referred back to a post he did in 1997, where he said the goals of discovery are: 
                          A. Achieve the best outcome for the client
                          B. Minimize cost
                         C. Learn the facts of the case
                         D. Prepare offense or defense
                         E. Fulfill obligations to produce documents

and then went on to say “I don’t think that has changed.”

With all due respect to Ron, who I think is one of the brightest people I know, in or out of the legal sector, I disagree. I believe that there are two major additions to the goals of discovery since the amendments to the FRCP and they are both significant new obligations. The first is establishing the preservation of electronic documents at a point before the litigation actually commenced, that is that a proper ESI litigation hold strategy was employed and the second is the duty to cooperate in order to better facilitate FRCP 1.

Although both these concepts (preserving necessary documents and cooperation between parties) were in existence before the rise of ESI, recent court decisions have clearly extended their scope to deal with the enormous amounts of electronic documents we now generate.  I’ll be talking more about this obligation tomorrow on a webinar with Chuck Kellner, the  Vice President of eDiscovery Consulting at Anacomp. You can register for the webinar on the Anacomp web site or come by and see us in the exhbit hall at LegalTech.  We’d love to hear your comments on this ongoing issue

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