Preservation: E-Discovery's Oft-Overlooked Price Driver

The costs associated with the discovery of electronically stored information continue to increase at unknown rates. While much of the discussion regarding costs centers on those associated with accessing, reviewing, and producing ESI, an oft-overlooked but (in many cases) significant driver of the high price of discovery are the costs associated with preserving it.

Such costs can start to accrue even before a complaint is filed; and, depending on the types of systems and data involved, the costs of preservation can mount quite quickly. This is particularly true for types of ESI that are not normally subject to long-term retention and that are not easy to preserve in a manner that will withstand attack from a knowledgeable adversary.

EXISTING NEW YORK, FEDERAL FRAMEWORK

A report to the Chief Judge and Chief Administrative Judge of the New York state courts noted earlier this year that cost-shifting was the subject of "conflicting trial court decisions" and was a "'confusing' or 'unsettled' area of law in urgent need of clarification."[FOOTNOTE 1]

Unlike the federal system, a number of courts have held that New York operates under the principle that "parties seeking discovery of documents assume the costs associated with the opposition's production."[FOOTNOTE 2] Given the paucity of case law, however, it is far from clear whether this principle extends to costs incurred in connection with the preservation of ESI.

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Source: law.com
By: Michael B. de Leeuw and Eric A. Hirsch