You would be hard-pressed today to find any seasoned litigator who does not tell you how litigation has changed for the worse. There’s more than just sentimentality and “good-ol’-days” wistfulness in their complaints. Contemporary litigation has become nastier and more ruthless. And particularly as administered by some headline-grabbing federal judges, discovery of electronically stored information (ESI) has given everyone from clients to young associates considerable heartburn. In fact, ESI is now almost universally understood as a kind of litigation curse. How else might you describe the huge costs and terrible burdens that have necessarily resulted from the process of collecting, sorting, reviewing, and producing such material?
Maybe as a great benefit? The ESI discovery process is a pain, no question. It has taken over litigation in a way not seen since modern discovery itself burst on the scene, turning the limited productions of yesteryear into such a wide-open, free-wheeling affair. Clients are miserable, litigation “consultants” are crawling all over the discovery process, and spoliation motions are a prominent and decidedly ugly feature of contemporary practice. But amidst it all, ESI discovery has provided advantages perhaps less well observed. It has made much of the discovery process irrelevant, or at least easier and better, not worse. And no place has the impact been greater than on depositions. Among other things, it has allowed them to be taken backwards.
How’s that? Depositions? Backwards? Depositions would seem to be one of the parts of the discovery process least affected by the advent of ESI. What’s different? And what difference does the difference make? This takes some explaining, not least because many litigators, particularly those of the old-school variety, seem not to have noticed that anything has changed. And too many of their younger colleagues, being schooled in the old, mostly outdated tactics, don’t know of the change either. To see what’s really going on, we need to go back to first principles.