Taming the Fox in the Henhouse: Defensible “Self-Collection” in E-Discovery

Oceans of ink have been spilled in recent years on the exponential growth of electronically stored information in society and the corresponding impact that growth has had on discovery costs in litigation. All stakeholders in the litigation process—but especially those who find themselves frequently on the responding side of discovery— are looking for ways to harness those costs that are defensible and do not compromise the essential truth-seeking function on which our civil justice system is based. This is no easy task, as the truthseeking function in the United States is believed best to be served by allowing broad discovery of all matters potentially relevant to the claims and defenses in each case. And in a world where an estimated 89 billion business emails are sent each day, and large organizations are increasingly seeing their data stores break the petabyte barrier,“broad discovery” even in cases with relatively narrow facts and modest stakes can quickly encompass document counts in the tens or hundreds of thousands, or much more.