Jul 7, 2026 · 22 min · 10 segments
In this episode of In the Counsel's Chair, host Jack Needham sits down with Joshua Robbins, a partner in the Orange County office of Crowell & Moring, to talk about a different way of thinking about…
Joshua RobbinsGuest
Jack NeedhamHost
Yeah, and we'll get more into this in a second, but do you have a sense of whether litigation in the U.S. is headed in a particular direction? Of those two directions, discovery-heavy and sort of using discovery alternatives, is there a space now for the alternative?
Well, you have seen over some decades now a movement of a lot of cases into arbitration.
in arbitration, often the nature of discovery will be condensed a lot And so you do see, depending on how the case is run and how the parties want to run it, somewhat moving in the direction of less heavy standard discovery.
I think there was an attempt by the courts to reduce the sum of the scope of discovery, at least in the federal system by introducing this concept of proportionality at one point too, so that it wasn't just, it couldn't just pursue fishing expeditions for their own sake.
Very document-intensive process, and that process can take often years in a larger case.
So I don't know that, at least in the cases that stay in court, there's been a huge movement in that direction.
Is there anything that would change that in terms of technological developments, just court backlogs, inefficiencies?
Yeah, well, obviously what everyone would be talking about these days is AI and technology.
Forms of artificial intelligence have been used for some time now, well before generative AI became a big topic.
People have been using different forms of AI to do document review, to kind of cut down the scope of document review, which has been sort of counteracting this explosion in data and communications that electronic communication has brought about.
Hard to see right now exactly how those two countervailing dynamics are going to play out.
The hope is that some of the more advanced AI programs now are going to condense the amount of time and expense it takes to go through these piles of documents to find the relevant ones.
standard practice, there will be more standard protocols on how that can be used to do that.
that it will make that aspect of litigation less burdensome and less expensive.
Yeah, and we'll get more into this in a second, but do you have a sense of whether litigation in the U.S. is headed in a particular direction? Of those two directions, discovery-heavy and sort of using discovery alternatives, is there a space now for the alternative?
Well, you have seen over some decades now a movement of a lot of cases into arbitration.
in arbitration, often the nature of discovery will be condensed a lot And so you do see, depending on how the case is run and how the parties want to run it, somewhat moving in the direction of less heavy standard discovery.
I think there was an attempt by the courts to reduce the sum of the scope of discovery, at least in the federal system by introducing this concept of proportionality at one point too, so that it wasn't just, it couldn't just pursue fishing expeditions for their own sake.
Very document-intensive process, and that process can take often years in a larger case.
So I don't know that, at least in the cases that stay in court, there's been a huge movement in that direction.
Is there anything that would change that in terms of technological developments, just court backlogs, inefficiencies?
Yeah, well, obviously what everyone would be talking about these days is AI and technology.
Forms of artificial intelligence have been used for some time now, well before generative AI became a big topic.
People have been using different forms of AI to do document review, to kind of cut down the scope of document review, which has been sort of counteracting this explosion in data and communications that electronic communication has brought about.
Hard to see right now exactly how those two countervailing dynamics are going to play out.
The hope is that some of the more advanced AI programs now are going to condense the amount of time and expense it takes to go through these piles of documents to find the relevant ones.
standard practice, there will be more standard protocols on how that can be used to do that.
that it will make that aspect of litigation less burdensome and less expensive.
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