Master Whitaker suggests a framework for improving the practice & reducing the costs of e-discovery
There is an obvious need to control costs that arise from the propensity of disclosure of electronic stored information (ESI) to cause disproportionate amounts of work and cost. Despite Lord Woolf’s abolition of automatic train of enquiry discovery, the change from paper documents to ESI has seen its virtual reintroduction as parties insist on wide searches for ESI to pull in everything that might be relevant.
The extent of a reasonable search for ESI, as opposed to paper documents, is hugely affected by the multiplicity of sources and formats in which ESI can be found (word processed documents, e-mails, SMS messages, the contents of hand-held devices, digital voice recordings, social networking) and the sheer volume, location, and number of duplicates that may exist.
The cost and disproportionality of disclosure in litigation is a particular problem of common law civil dispute resolution systems where disclosure is seen to be an indispensable tool of justice. This may have been both possible and acceptable when the common law nations dominated
