The National Arbitration Forum Blog

The civil justice system as a whole is bogged down by e-discovery, according to a recent report, The Big Data Dump. Experts warned of a trend toward a "deluge of electronic information" and the negative effects it has on access to justice.

Rebecca Love Kourlis, formerly a justice on Colorado's Supreme Court and now the director of the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver, calls the justice system a 'sick patient'. "With crowded dockets and understaffed courts… electronic discovery now threatens a lethal spike in fever."

Love Kourlis has seen ordinary landlord-tenant disputes take three years, and divorce cases that might have been merely bitter turn into digital wars of attrition. She sees cases that are settled only because one party cannot afford the costs of e-discovery; whereas in the past 5% of cases went to trial, now only 2% do. She knows plaintiffs who cannot afford to sue at all, for fear of the e-discovery costs.

Stephen Breyer, a justice on the United States Supreme Court, recently expressed concern that, with ordinary cases costing millions in e-discovery work alone, "you’re going to drive out of the litigation system a lot of people who ought to be there" so that "justice is determined by wealth, not by the merits of the case."

The article, from the August 30, 2008 edition of The Economist, came out days before the release of a litigation survey that called attention to additional problems associated with discovery.

An ailing civil justice system could be cured by limits on information overload. Adequate discovery and speedy resolution of legal disputes do not have to be mutually exclusive. If arbitration is administered promptly and reasonable time limits are enforced, parties can engage in necessary discovery and still resolve their case faster and more cost-effectively than if they engaged in protracted litigation.

On Monday, ADR Prof blogger Art Hinshaw wrote a post on a court-connected ADR speech recently given by Judge Wayne D. Brazil. Judge Brazil argues that lower cost alternatives, like ADR, would better serve members of the public with lesser means, and facilitate access to justice for all.

Related Posts:

• Report: Lawyers Worry About Court System, Praise ADR
• Problem: Americans Increasingly Denied Access to Justice
• Defense Attorney Addresses Inefficiencies of Litigation
• The Keys to Efficient Arbitration
• E-discovery: Special Masters For A Special Problem
• Speed and Discovery in Arbitration