The information revolution has changed the way and speed at which we work, play, and communicate. It appears to have resulted in major gains in productivity in a wide range of economic activity. But it is far less clear that it has improved the administration of justice. Based on what I hear from colleagues, it appears that the information revolution may be making our system more expensive -- in many cases prohibitively expensive -- without either making the system more efficient or better enabling the courts to determine the actual facts and apply the law.

Access to justice -- the ability of those with less means to obtain meaningful access to our courts -- is widely and rightly acknowledged by the Federal Bar Association (FBA) as a serious concern and problem. The FBA's Pro Bono Panel and Federal Civil Rights Clinic are two programs created to address this issue. We must remain vigilant in our collective efforts to ensure that those of low and moderate means can afford to seek redress or to defend themselves in the courts.

But the information explosion has spawned a related problem, that may be both more insidious and more prevalent. Too much information and the burdens and expenses of locating and retrieving it skewed the cost benefit analysis of litigation. Back in 1983 when I began my career at a large New York City firm it occurred to me that the high-speed copy machine -- then itself a relatively new development -- had significantly changed law practice. First, our clients were acquiring these machines, and they were increasing dramatically the quantum of paper they were generating and keeping. Second, lawyers had the high-speed machines too, and thus could produce and review substantially more information. This certainly resulted in more information that was available to support and to defend legal claims, arguments and positions. And it required more lawyers and legal support to undertake this review. But I questioned whether it resulted in better justice -- whether it enabled us as advocates and, more importantly, the courts as arbitrators, to better find and know "the truth."

Fast forward a generation, and the high-speed copier now is a quaint, antiquated piece of technology. But the concerns raised by the information explosion are significantly greater. As recently as the 1980s, with the exception of the few papers that might be scattered on one's desk at any given time, one had to intend to save something. Now, however, the exact opposite is true: one has to act affirmatively to delete an electronic document -- and often even that does not prevent the storage of the data somewhere on a hard drive or in cyberspace. At the same time, an expansion in available storage capacity has led to an outlandish increase in data storage. In the early years of my practice, a given witness on a moderate-sized commercial matter might have only a box or two of hard-copy documents, which typically could be readily segregated and reviewed. I am told that now a given "document" custodian usually has at least 1 GB of data to be reviewed (and frequently much more). This is the rough equivalent of approximately 20 banker's boxes worth of material.

In short, the rise of email and other digital technology has generated an exponential expansion of the documents and information that might be relevant to any legal dispute -- and thus which might be requested, reviewed, produced and contested. And it seems that this trend will continue.

The result has been a major, perhaps massive, increase in the cost of many cases. The increase is not due solely to the vast time often required to identify, collect, process, review and produce information that might support one's claim or be responsive to discovery requests. It also results from "litigation within the litigation": disagreements and motion practice about how to search electronic data, how to produce it, whether it has been destroyed or deleted, sanctions for such destruction, and so on.

The courts are grappling with these issues too, and attempting to provide guidance. The vast bulk of the decisional law to date has been produced by our federal courts. Some of the decisions to date impose severe sanctions for conduct that is deemed grossly negligent but plainly was not intentional. These decisions may be having unintended consequences: without bright lines for the bar to know what is required, an "abundance of caution" may be appropriate -- and with it the costs associated with that caution. Those cases that do outline clear standards of practice often do so in the context of very large and complex litigation, perhaps unwittingly setting in nine-figure cases a standard of practice that simply cannot be met by litigants in six-figure cases, much less those which are smaller.

In this sense, access to justice today is not a problem restricted to those with less. Instead, it is an issue that confronts even those with substantial resources.

To be sure, litigation always has been costly and always has required not only the sweat and tears of litigants but also their money. But what seems clear to me and to many of my colleagues is that the cost of litigation have increased over the past generation to the point where it -- and not the merits of the dispute or the risks of an adverse judgment -- much too often is a prime (or, increasingly, the prime) reason why parties settle their cases.

This seems to pose a real problem for our profession. First, it threatens the legitimacy of our legal system: if litigants conclude that they cannot have their legal disputes prepared, heard and decided at a reasonable cost, they will conclude that our system does not work. Second, it creates tension in the attorney-client relationship: to do what we think is required too often could put us at odds with what our clients can or will pay. And third, it is dispiriting to us trial lawyers: we serve in a helping profession, and want to help our clients and the system of justice, but find that our own fees are too often the problem.

Our profession, bench and bar, should address this issue. Is the solution discovery rules and perhaps limitations that reduce the time and effort required to process electronic and other discovery? Is it more and earlier hands-on management of the discovery process by our judges? Do we need simply to change how we practice? Or to reduce the time-to-trial so that the amount of time available to fight over discovery is curtailed? What are the causes, besides the information explosion, that have contributed to the steep rise in the cost of litigation?

The FBA is determined to address these issues -- to undertake sufficient outreach to our bench and bar to identify the particulars of the problem, to brainstorm about and vet potential solutions, and to report and make resolution recommendations . We recognize that we cannot solve this problem all by ourselves but that is no reason not to be part of the solution. We seek your input and participation in this effort.

James P. Savitt
President