The last sentence of Federal Rules of Civil Procedure, Rule 1 requires that the Federal Rules of Civil Procedure ‘shall be construed to secure the just, speedy, and inexpensive determination of every action.’ As I approach the curmudgeon years of my legal practice, I fear that this mandate has been overlooked, ignored and abandoned. The threat comes from the considerable challenges of electronic discovery, its excessive costs, and the gamesmanship possible with electronic data.

I don't pretend to have all or any of the answers. There is a paradigm shift underway from the pure adversary system to one in which considerable cooperation is demanded at the inception of the case. There is a real tension between zealous advocacy and the disclosures required under federal and state rules.

Since I don't have the answers, I would be interested in initiating a dialogue where readers of this blog might contribute their thoughts on what can be done and what should be done to confront the challenges of electronic discovery. If we'll are unable to develop an effective modus operandi for electronic discovery, I fear that civil litigation will be foreclosed for many of us. Please send your opinions to me at b.marean@gmail.com and I'll summarize them in an upcoming post.