THE BIG DATA DUMP

Dawn Beye’s teenage daughter suffers from anorexia nervosa and had to be treated in hospital at a cost of about $1,000 a day. Horizon Blue Cross Blue Shield of New Jersey, the Beyes’ insurance company, covered one month of the bills but then balked, demanding evidence that the affliction was ‘biologically based’ rather than psychological. So Beye got together with parents of other anorexic and bulimic teenagers and sued. Horizon immediately asked to see practically everything the teenagers had said on their Facebook and MySpace profiles, in instant-messaging threads, text messages, emails, blog posts and whatever else the girls might have done online.

The Beyes’ lawyer, David Mazie at Mazie, Slater, Katz & Freeman, objected on the grounds that Horizon’s demands violated the girls’ privacy. He lost. So harddisks and webpages are being scoured in order for the case to proceed. Gathering and then sifting through all the electronic information that a few teenage girls have generated is excessive and daunting, says Mazie.

And yet almost all information today is electronic, and there is ever more of it. “Things that we would never have put in writing are now in electronic form,” says Rebecca Love Kourlis, formerly a justice on Colorado’s Supreme Court and now the director of an institute at the University of Denver dedicated to rescuing America’s civil-justice system.

This system, she says, was already a ‘sick patient’—with crowded dockets and understaffed courts—but electronic discovery now threatens a lethal ‘spike in fever’. She has seen ordinary landlord-tenant disputes take three years, and divorce cases that might have been merely bitter, but are now digital wars of attrition. She sees cases that are settled only because one party cannot afford the costs of e-discovery: whereas in the past 5% of cases went to trial, now only 2% do. She knows plaintiffs who cannot afford to sue at all, for fear of the e-discovery costs.

For large companies, these costs now run into many millions. Patrick Oot, a lawyer for Verizon, an American telecoms giant that gets sued a lot, says that at the beginning of this decade e-discovery presented “a one-big-case, once-a-year problem”. In most cases, information was still on paper, and its volume thus limited. In the rare event that electronic evidence was requested, 100 gigabytes (GB) was considered a large amount.

Today, says Oot, almost every case involves e-discovery and spits out ‘terabytes’ of information—the equivalent of millions of pages. In an...