The Legal and Economic Implications of Electronic Discovery

Options for Future Research

by James N. Dertouzos, Nicholas M. Pace, Robert H. Anderson

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Abstract

Pretrial discovery — the exchange of relevant information between litigants — is central to the American civil legal process. As computer technologies continue to develop, concerns have arisen that, because of the sheer volume of electronically stored information, requests for electronic discovery (e-discovery) can increase litigation costs, impose new risks on lawyers and their clients, and alter expectations about likely court outcomes. For example, concerns about e-discovery may cause businesses to alter the ways in which they track and store information, or they may make certain types of plaintiffs and defendants more likely to sue, settle out of court, or go to trial. This paper presents the results of an exploratory study to identify the most important legal and economic implications of e-discovery. The authors interviewed plaintiffs and defense attorneys as well as corporate information technology staff and in-house counsel, and they reviewed the current state of e-discovery law and procedure. They then developed a preliminary model to explore the range of plausible effects that e-discovery might have on case outcomes. After summarizing this research, the authors propose five studies that will evaluate how e-discovery affects and is affected by technology, costs, business practices, legal outcomes, and public policy.

Table of Contents

  • Chapter One

    Introduction

  • Chapter Two

    The Current State of E-Discovery Law

  • Chapter Three

    Exploratory Model of Case Outcomes

  • Chapter Four

    Proposed Research Agenda

The research described in this report was conducted within the RAND Institute for Civil Justice (ICJ). ICJ research is supported by pooled grants from corporations, trade and professional associations, and individuals; by government grants and contracts; and by private foundations.

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