The Legal and Economic Implications of Electronic Discovery: Options for Future Research

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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.

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Section 1 Introduction
Section 2 The Current State of EDiscovery Law
Section 3 Exploratory Model of Case Outcomes
Section 4 Proposed Research Agenda

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About the author (2008)

Nicholas M. Pace (J.D., School of Law, University of Oregon) is a resident consultant at RAND.

Robert H. Anderson (Ph.D., Applied Mathematics, Harvard University) is a Senior Information Scientist at RAND. Research areas include social implications of the information revolution; security and safety of internetted networks; computer languages and support environments for modeling and simulation; human-computer interface; use of computers for C3I and defense intelligence operations; and software development methodologies.

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