Financial Times FT.com

Halt the destructive e-discovery boom

By John Dizard

Published: September 6 2009 10:11 | Last updated: September 6 2009 10:11

If you have not been through the justice system, be assured that there are no more frightening words in the language than “discovery”. However innocent you may be of wrongdoing, or justified in the claims you make or defend against, the process of being forced to produce documents or other evidence is very time consuming and painful.

Now, thanks to the miracles of computerisation and electronic communications, the pain and expense of discovery has become even worse. What had been the province of the general counsel’s office is now a continuing board-level concern. Arguably, the defining moment came in 2005, with a $1.5bn (£917m, €1bn) award (later overturned) against Morgan Stanley by Ron Perelman’s Coleman Corp. What chilled the C-suites of the world wasn’t Morgan Stanley’s wrongdoing or innocence, but the judge’s harsh denunciation of the company’s failure to turn over every single e-mail that might have been relevant to the case. That admonition was not overturned on appeal.

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