Deterring Discovery-Driven Data Deletion

Abstract

Litigation costs frequently frighten companies into deleting valuable data—and this problem has gotten worse with new technology.  In the past, litigation costs were dwarfed by the physical costs of storage: keeping letters in filing cabinets was so expensive that companies deleted data without even considering litigation.  Now, however, technology has caused physical storage costs to fall dramatically; hard drives are vastly less expensive than filing cabinets.  As these costs fell, the litigation costs became more important.  Litigation costs now cause a large fraction of data deletion.  This Note identifies the rise in discovery-driven data deletion and explains how this data deletion benefits no one and harms society.  To solve this problem, this Note proposes reforms to the Federal Rules of Civil Procedure that would prevent discovery costs from incentivizing so much data deletion.  This Note closes with practical thoughts on how judges and attorneys operating under the current Rules can minimize costs.

The author would like to thank Daniel Richman, Shreya Fadia, Debbie Long, W.D. Sockwell, Bert Huang, Maura Grossman, and the staff of the Columbia Business Law Review.