Since litigation trends tend to follow trends in society, it is almost axiomatic that electronic discovery will eventually overshadow paper-based document discovery. Yet litigants and courts continue to express more anxiety than optimism over electronic discovery and its anticipated consequences. The ultimate question to be addressed is whether there is anything about the nature of electronic discovery that necessitates any changes in our rules of evidence, rules of civil procedure, or case management strategies. Before we can reach this ultimate question, we need to further explore some fundamental questions.

We may want to consider testing the assumption found in much of the electronic discovery literature that electronic discovery is costlier or causes more delay in litigation than paper-based discovery. This would be a difficult proposition to test, as we are not in a position to litigate the same cases twice and compare the costs. However, we may be able obtain data or design a survey that compares discovery costs in two statistically valid samples of cases, one of cases involving electronic discovery and another of cases involving exclusively paper-based discovery. The same method could be used to compare the length of time over which discovery took place, and the number of discovery disputes.

If such studies indicated that there were actual cost differences between the two discovery environments, the next questions would be why the differences arise. There may be several factors, not all of which are within the control of the court:

• Attorneys on either or both sides of cases involving electronic documents and data may not have the requisite computer skills to understand how to effectively conduct discovery
• The parties themselves may contribute to the problem by not having proper electronic records management procedures
• The parties and their counsel may believe that since the electronic environment offers potential for more wide-ranging discovery than the paper environment, that potential should be exploited
• Judicial officers may avoid intervening, either as a matter of policy or because they are not comfortable with the technological issues involved
• "Information overload" may be an inevitable consequence of computerisation.

Developing and executing research strategies to test each of these hypotheses, and the many others that could be formulated, would be a formidable task. However, small-scale research projects could be designed that begin to look behind the perceptions stated in the electronic discovery literature and place our understanding of this issue into a more practical context.

Using existing court records, recently-closed cases most likely to have involved some discovery activity may be identified by subject matter, amount in controversy, docket entries, or a combination of indicators. From that sample, the attorneys and judge in each case could be contacted with a simple survey asking whether or not there was disclosure of electronic evidence, if so, whether they would be willing to participate in a more detailed survey.

A more detailed follow-up survey could ask the participants their impressions regarding electronic discovery:

• Whether electronic discovery generated any significant additional costs or contributed significantly to any delay in the overall litigation
• Whether there were any conflicts between the established discovery procedures in their case and the practical realities of electronic discovery
• Whether they felt burdened by their electronic discovery obligations in comparison to paper discovery
• Whether they were satisfied with their opponents' electronic disclosure in comparison to paper discovery
• Whether (in the case of attorneys) they felt the judge understood, helped, or hindered the electronic discovery and disclosure process
• Whether (in the case of judicial officers) they felt that the attorneys understood the practical and procedural issues, and were reasonable or unreasonable in their conduct of electronic discovery and disclosure

Finally, interviews with the judges who respond could be conducted to obtain "neutral" views of the problem and gather ideas on judicial management.

The data gathered from such a series of surveys would probably not be considered "scientific" as much as exploratory. The response to the initial survey may indicate the extent to which electronic discovery is or is not a common element in certain types of litigation, a question which will be mooted over time. The goal of the second survey would not be to quantify various aspects of electronic discovery, but to perform a sounding to determine if there is a widespread belief that there are problems with, or advantages to, electronic discovery that are within the power of the judiciary to address. The participants in the second survey will be self-selected for those who have something to say, and perhaps an axe to grind, in relation to electronic discovery, and the resulting data would need to be analysed with that assumption clearly in mind. The goal of the third survey would be to assess the "state of the art' in terms of judicial management of electronic discovery, and begin to assemble a set of procedural and management tools for immediate use by both judges and attorneys.