Breyer Discovers e-Discovery

Supreme Court Justice Stephen Breyer was the star panelist Tuesday at a summit at Georgetown University Law Center on how the explosion in electronically stored information (ESI) is transforming the legal system. A confessed “babe in the woods” on the issue, Breyer was dazzled when the experts on the panel started throwing around words like “exabyte” (that’s 1 with 18 zeroes next to it) and metaphors like “44 Empire State buildings” to quantify the data produced in workplaces today. All of it can be demanded in discovery, creating enormous challenges and expense to review the material, with a good chance that half or more of pertinent documents will be missed.

When Patrick Oot, director of electronic discovery at Verizon, said reviewing documents in a single case cost his company $4 million, Breyer grew concerned. That kind of cost, he said, is “going to drive out of the legal system a lot of people who belong there.”

Coaxed by moderator Arthur Miller from Harvard Law School, panelists suggested possible solutions to the growing crisis, including – perish the thought – more cooperation between opposing attorneys. Nicolas Economou, CEO of H5, which co-hosted the summit and is in the document review business, said the system needs “honest brokers,” judicial or otherwise, to better identify what documents need to be searched and how success can be measured.