E-Discovery and Beyond: Toward Brave New World or 1984 ?

I. INTRODUCTION Anniversaries are occasions for reflection about the past and the future. As The Review of Litigation completes a quarter century of publication, we may use the occasion to reflect on where litigation is going in this country. I will focus on the impact of technology on litigation. In the foreground will be the advent of discovery of electronically stored information, commonly called E-Discovery. In the background will be the much broader question of the overall impact of technology on litigation in the coming century. Looking back a quarter century, one would have to say that the rise of the computer has been the major technological innovation. E-Discovery, of course, directly results from the vast and growing importance of computers in our business and personal lives. The potential impact of that revolution is only now being felt. Two famous books of the pre-computer age provide effigies of the future to which such technology might take us. Both portray technology as a device to enforce conformity to a repressive social order. Aldous Huxley's Brave New World,1 published in the early 1930s, offered a vision of technology as a seducer. It foresaw a world in which technology controlled almost all aspects of life, starting by brainwashing infants with whispered prejudices and relying among adults on an opiate (called soma) for the masses. George Orwell's 1984,2 published shortly after the end of World War II, offered a far different vision of a world dominated by technology-technology as the enabler of the tyrannical government called Big Brother. Each citizen was observed at almost all times by the omniscient Big Brother via TV cameras. Both of these visions should haunt those who contemplate the implications of technology for our present and future, particularly technology writ large with the pervasive importance of the digital revolution. And yet, as one judge said thirty years ago, "[t]he court should not be like an ostrich, sticking its head in the sand and being oblivious to advances in technology which can aid the judicial process."3 The question, however, is whether the courts should embrace technology as broadly as it can be embraced, perhaps as broadly as it has been embraced by society at large. I will turn first to considering the potential impact of digital technology on litigation in light of more general social trends affected by the computer. My particular focus will be on the potential impact of technology on trial. Against that general background, I will turn to the actual experience of dealing with the issues raised by E-Discovery. Although the possibilities of such discovery might seem similarly momentous, the outcome of a fairly comprehensive effort to grapple with its problems is hardly revolutionary. At the same time, the introduction of an important set of new Federal Rules of Civil Procedure keyed to new technology represents a qualitative break with a past in which technological change was not important to those rules. And this change has been accompanied by strong statements of concern that it will usher in an era of significantly changed discovery, and therefore significantly altered litigation. Although only time will tell the eventual story, the E-Discovery episode is sufficiently ambiguous that it could support arguments about a coming Brave New World or 1984. This specific episode, then, provides a basis for reflecting on the general potential impact of digital technology on litigation. Although that impact could be very dramatic, to date it has not and there are reasons to think that in the future it will not. To the contrary, at least with regard to our method of trying cases, there seem to be important reasons for being skeptical about the ways in which digital technology could transform litigation. II. LIVING AND LITIGATING IN THE DIGITAL WORLD A. A Quick Profile of the Effects of the Computer on Society at Large This introduction proceeds at the level of pop sociology. …