The legal literature on electronic discovery reflects the continuing preference of attorneys to print out discovery documents, even if they were generated and stored electronically, for inspection by the opposing party. Attorneys complain that electronic discovery forces them to create or copy documents, at their own parties’ expense, rather than simply make them available for inspection, as they did with conventional paper discovery. In larger disputes, when one or both parties is utilising computerised litigation support, this bias in favour of paper has resulted in a diseconomic pattern of "electronic to paper to electronic to paper," in which producing parties print out their clients' electronic documents to allow inspection of the resulting paper, and requesting parties digitally scan the paper, ultimately printing out the images for trial preparation.

But most attorneys are unwilling to break with past practice and make documents available for inspection in digital form. Their reasons are not irrational. Allowing an opposing party access to one’s computer system for the purposes of inspection almost guarantees that privileged and irrelevant information will be exposed, important evidence will be altered or compromised, and the disclosing party will suffer business disruption costs. Therefore many attorneys see no alternative but to engage in costly paper-based review and production.

However, reduction of electronic information to paper may not be acceptable. It has been noted above that the routine visual and print manifestations of electronic documents such as word-processing and e-mail lack vital metadata, the information about the author, date of creation, and history of distribution and editing. To produce these electronic documents in their entirety, the disclosing party must make them available in electronic form, preferably on media as close to the original as possible. The requesting party must then have the ability to copy these to portable media in a manner that preserves the original electronic files to the greatest extent possible while protecting them from further mutation.

Databases and spreadsheets are dynamic methods of organising, processing, and presenting data and are not suited to being captured as static documents, in paper or electronic form. Spreadsheets, in particular, are slippery concepts, as each cell may contain static data, a formula with which to process data, or a dynamic result of data and formula. Unless a specific database report or spreadsheet view is at issue, production must be in electronic form, capable of being manipulated by the requesting party (with appropriate measures to assure the preservation of any static data).

The problems associated with the production of electronic data may be viewed as opportunities to make dramatic changes in day-to-day practice to reduce costs and speed discovery. While the literature in the United States tends to emphasise the strategic aspects of electronic discovery and the potential cost disadvantages, the literature in the United Kingdom places relatively more emphasis on the management aspects and potential cost advantages. This may be a result of the climate produced by the Woolf proposals and resulting rules changes, which explicitly encourage the use of information technology to improve the civil justice system. But the British literature indicates that a major cultural change needs to occur before clients and solicitors see the potential advantages.

The cost of manipulating paper documents, especially in large-scale litigation, can become prohibitive, particularly in multi-party cases. Once documents are identified, they must be sequentially numbered or otherwise uniquely identified, listed or indexed, photocopied, the photocopies inspected for accuracy, shipped, and stored. Costs of 6 1.25 or $2.00 per page of documentation through the life of the litigation are not unusual, and a litigation support service bureau industry has grown up in both the United States and the United Kingdom to meet the demand for paraprofessional assistance.

If the documents and data subject to discovery are generated originally in electronic form, and if clients and their attorneys normally store and use these in electronic form, there is no fundamental need to create paper versions simply for the purposes of discovery and disclosure. Copying costs may be reduced dramatically, particularly for multiple copy sets. The costs of quality inspection, creation of rudimentary unique identification or indexing, and shipping can be reduced to a pittance. The speed at which documents may be processed can be increased dramatically, and transport of entire document sets to multiple parties can take place in an instant.

The attributes of electronic documents and data which give rise to so many worries on the part of attorneys may be used to the litigants' advantage. Electronic discovery and disclosure can be integrated with two other advances in law-related information technology to streamline the dispute-resolution process: computer-based litigation support databases and computer-based trial presentation technology.

Litigation support databases are essentially digital catalogues of discovery material, created to assist attorneys to access, analyse, and organise evidence in preparation for settlement negotiations and trial. In both the United States and United Kingdom, the value of this type of litigation support, especially for the "big document" cases, has long been recognised. But the utility has been perceived as limited to the "big document" cases because of the cost of physically entering data from paper documents or scanning paper documents to populate the database. If litigation support databases were integrated with document disclosure and production in electronic form, these costs could be reduced dramatically, and the advantages of litigation support made available in more routine cases. The parties may even contemplate creating a shared virtual document repository and bibliographic litigation support database, a secure Internet site from which documents may be accessed, viewed, and downloaded.

Electronic trial presentation technology is also gaining increased acceptance in both the United States and United Kingdom. Judges are acknowledging the cost, speed, and efficiency advantages to "paperless" trials, during which documentary evidence, precedents, expert reports, and other material is available on CD-ROM or other secure electronic media, and even live testimony is transcribed in real time and incorporated into the electronic "bundle."

In recognition of the differences between electronic documents and data, and in order to realise the potential advantages of electronic discovery and disclosure, the courts should actively encourage the exchange of documents and data in electronic form whenever possible. This means creating a climate in which the electronic exchange of information is presumed, and overcoming the real objections that attorneys have to producing their clients' material in electronic form.

a. Reversing Presumptions

As stated previously, there is a long-standing bias in favour of paper-based document discovery, even when the documents have been created and are normally stored in electronic form. In the United States, there is explicit language in the rules of civil procedure and the rules of evidence stating this presumption.⁵⁷ Judges have the power to change this aspect of legal culture by issuing orders, early in the case, stating a preference for electronic exchange and laying the groundwork for electronic trial bundles.

b. Developing Protocols

Electronic exchange is technically more complicated than paper exchange. There must be agreements in place as to the format for the exchange, the method of document or data selection, the time and place of the exchange, the minimisation of business disruption, the preservation of the data after exchange, and a host of other details. Working these details out on a case-by-case basis would be a costly waste of judicial energy, but protocols may be developed to cover the majority of situations. Alternatively, the court could call upon neutral electronic discovery technicians whose mission would to facilitate electronic document and data exchange between the parties, and who would reduce any resulting dispute to alternative procedures for judicial consideration.

c. The "Inadvertent Waiver of Privilege" Problem

Perhaps the most important obstacle to the co-operation and mutual access necessary for electronic document and data exchange is the traditional resistance attorneys have to letting opposing parties view their clients' document collection without thorough pre-screening for privilege. There are several strategies for minimising this problem, including careful segregation of responsive material prior to inspection and the use of a neutral technician to actually perform searches. But the most important way to diffuse the perception of danger in the minds of attorneys to remove the dire consequences of inadvertent waiver of privilege.

While doctrine of waiver is not applied consistently in the United States, the essential fear is that if a privileged document is inadvertently disclosed to the opposing party, that document may either be used in court by the party (or others), or worse, that the entire class of documents from which it is derived may lose privilege in this (or subsequent) litigation. Judges must work to clarify how the doctrine of inadvertent waiver will be applied in the future, recognising the differences between electronic and conventional paper discovery. Whenever possible, the parties should be encouraged to enter into judicially-sanctioned and binding agreements to limit the application of the doctrine in their case.⁵⁸

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