The Discovery Sombrero, and Other Metaphors for Litigation

Abstract

Academics, judges, and policymakers know little about the timing, volume, and cost of discovery in our civil justice system. This information deficit is most severe with respect to the most salient discovery-related issue for practitioners today: preservation — the duty to preserve relevant data when litigation is reasonably anticipated. This collective ignorance feeds uncertainty at both the policy level and at the doctrinal level. In this paper, I present original, empirical research on the nature and costs of preservation and discovery. This research is the first, and to date only, systematic effort to measure the extent and costs of preservation activity. I describe key findings and propose three new stylized facts: the discovery sombrero, the preservation iceberg, and the long tail of litigation costs. I then provide examples of how these stylized facts help inform doctrinal and policy questions on preservation and discovery, including the choice between common law development and federal rule-making, the choice between reliance on legal reform or technological innovation to control costs, and the question of how to tailor the Federal Rules of Civil Procedure to heterogeneous cases without sacrificing the Rules’ commitment to transubstantivity.

Keywords: discovery, preservation, e-discovery, electronically stored information, litigation holds, litigation cost

JEL Classification: K41