Electronic Discovery and the Constitution: Inaccessible Justice

Computers are the cynosure of American society. As a result, most information is stored electronically and only a small amount of information ever becomes a paper document. This explosion of electronically stored information has affected every aspect of society, including the court system. Litigation is drastically different than a few years ago due to this onset of electronically stored information. The discovery of electronically stored information in litigation has become known as electronic discovery. For many, electronic discovery is expensive and complicated, and thus, litigants are settling frivolous cases to avoid the costs and complexities of engaging in discovery to exchange electronically stored information. Even now, many attorneys do not understand how to obtain and utilize electronically stored information nor do they have the resources to engage an information technology technician to assist them. Often judges are not educated in the exchange of electronically stored information either. The advent of electronic discovery in civil litigation is not only foreign to many attorneys and judges, but also unrepresented parties, and thus, impacting indigents\u27 access to justice. The United States Supreme Court has declared access to justice - including access to the courts - a fundamental right. The United States recognizes a right to counsel for indigent litigants in criminal cases, but not civil cases. Indigent civil litigants already are at the losing end when involved in the court system, even with the aid of the self-help centers and the handful of volunteer lawyers and legal aid societies. Poor litigants are usually self-represented in civil matters because of the inability to afford counsel. Yet, significant rights - basic needs -- may be at stake in these cases, such as housing, safety, health, child custody or sustenance. Electronic discovery is significantly impacting access to justice because the costs and complexities of electronic discovery are further preventing poor and even moderate income litigants from accessing justice in the American legal system