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Wisdom Or Worry: State Courts Lack E-Discovery Rules

Connecticut Law Tribune

February 7, 2011

Authors: Jill M. O'Toole

Unlike most other states, Connecticut does not have e-discovery rules similar to the federal rule amendments adopted in 2006. Is this a cause for concern? No. The costs of e-discovery are simply too high to justify anything but a careful and thoughtful approach to adopting rules that potentially could change the playing field for parties and lawyers alike.

The risks of adopting e-discovery rules without a thorough analysis are obvious: e-discovery expenses should not be the gatekeeper that determines which litigants have a day in court. For example, certain parties and law firms may be deterred from bringing contingency fee cases involving terabytes of electronically stored information (ESI) because they lack the financial resources to bear the expense of collecting, processing, reviewing, and producing ESI in the absence of cost-shifting.

Even without specific e-discovery rules, Connecticut state courts have been applying existing statutes, rules, and causes of action to address e-discovery issues. Yet, the relatively low number of cases involving e-discovery issues, which are published or available on electronic databases, raises significant questions.

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