International Construction Law Review
ELECTRONIC DISCOVERY IN AMERICA: THE GOOD, THE BAD AND THE UGLY
PATRICK J O ’CONNOR
Partner, Faegre Baker Daniels LLP, Minneapolis, Minnesota, USA
1. Introduction
In the last year of the last century, approximately 93% of all information created that year was done so electronically.1 The speed with which the paper has given way to the digital age is breath-taking. In 1996, only 5% of discoverable documents derived from electronic formats. A decade later, over 90% of corporate information was created and stored electronically, and 70% of that information had never been printed to paper.2 Depending upon industry sector, American business spends on average nearly 7% of its revenue on information technology.3 The amount of digital information is staggering:
“The amount of digital information increases ten-fold every five years. Moore’s law, which the computer industry now takes for granted, says that the processing power and storage capacity of computer chips double or their prices halve roughly every 18 months … A vast amount of that information is shared. By 2013 the amount of traffic flowing over the Internet annually will reach 667 exabytes, according to Cisco, a maker of communications gear. And the quantity of data continues to grow faster than the ability of the network to carry it all … The quantitative change has begun to make a qualitative difference.”4
1 Kenneth J Withers, “Electronic Discovery: The Challenges and Opportunities of Electronic Evidence”, address at the National Workshop for Magistrate Judges (July 2001) (“According to a University of California study, 93% of all information generated during 1999 was generated in digital form, on computers. Only 7% of information originated in other media, such as paper.”), quoted in In re Bristol Myers Squibb Sec Litig, 205 FRD 437, 440, n. 2 (D NJ 2002).
2 Daryl Teshima, “Seven Deadly Sins of Electronic Discovery”, L Off Computing, June–July 2003, available at http://www.strategicdiscovery.com (“[O]ver 90 per cent of all corporate communication is now electronic, and less than 30% is ever printed (and thus collectible in paper form).”).
3 CIO, 2008 State of the CIO, at www.cio.com (report conducted based on results of the survey of 558 heads of information technology).
4 “Data, Data Everywhere” The Economist, 25 Feb 2010. An exabyte is a unit of information or computer storage equal to 1 quintillion bytes (short scale). In 2004, the global monthly Internet traffic passed 1 exabyte for the first time. The global growth in Internet traffic has continued and, as of March 2010, approximately 21 exabytes a month of traffic passed on the Internet. By 2013, the amount of annual global IP traffic is estimated to reach two-thirds of a zettabyte, or 667 exabytes. According to an IDC paper sponsored by EMC Corporation, 161 exabytes of data were created in 2006, “three million times the amount of information contained in all the books ever written”, with this number exploding to nearly 1,000 exabytes in 2010. To give some context: An exabyte equals 1024 petabytes. A petabyte is 1,000 terabytes, or 1,000,000 gigabytes and has been equated to approximately 20,000,000 four-drawer file cabinets filled with text or 13+ years of HD-TV video. A gigabyte of data translates into roughly 65,000 pages of Microsoft Word files. Lexis-Nexis Discovery Services Fact Sheet at www.lexisnex is.com[applieddiscovery. Different document types translate into different numbers of pages. For example, e-mail files average around 100,000 pages per gigabyte, whereas Microsoft PowerPoint files average a little over 17,000 pages per gigabyte. A relatively inexpensive business laptop today usually ships with a hard drive sized at 250 to 320 gigabytes or more. Doing the maths, that laptop can theoretically hold between 16,000,000–20,000,000 pages of Microsoft Word files. In reality, the average laptop does not hold anywhere near this amount of data. Empirical data regarding volumes collected in e-discovery is scarce, but a 2010 survey of law firms, corporations, consultants and software providers reported a mean of 22 gigabytes and a median of 18 gigabytes collected per laptop and desktop hard drive. Using a conservative estimate of 2,500 documents (or 25 pages per document) per gigabyte, this translates into approximately 55,000 documents collected per custodian hard drive, which, if multiplied by even a modest number of custodians, mounts quickly to staggering heights. See Dutton, LLC, eOps 2010: Electronic Discovery Operational Parameters Survey, available at http://www.catalystsecure.com/blog//wp-content/uploads/2011/07/electronic-discovery-operational-parameters-survey.pdf (Apr 2010).
The International Construction Law Review [2013
490