Almost 90 percent of 1,400 lawyers who responded to a recent survey said “e-discovery is too costly and is increasing litigation costs, causing cases to be settled on cost rather than merit.” This conclusion, from a study conducted by the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System (IAALS), is in Info. Mgt., Vol. 43, Jan./Feb. 2009 at 12.
It’s news to me that law departments feel forced to settle unmeritorious cases because they fear the costs of discovery. Undoubtedly, discovery has become much more complicated and expensive in recent years, but to some degree both sides bear those additional costs. And judges can mitigate burdensome demands for discovery. Further, some research suggests that e-discovery accounts for only about half of the documents subject to discovery (See my post of Feb. 7, 2009: metrics on the larger the company, the more documents stored electronically.).