For all that has been written about e-discovery over the past decade, the only reason anyone truly cares is its cost in both money and time (which often are the same thing).
If the proliferation of computers in the workplace, easy access to high-speed internet connectivity and the dramatic increase in the number of e-files that make up discovery in most cases had resulted in the use of a "find the evidence" button that cost a dollar to buy and a half-hour to review, I wouldn't be writing this column.
Costs get people's attention.
Cost/benefit calculations are at the heart of Federal Rule of Civil Procedure 26(b)(2)(C)(iii), which requires that the court "limit the frequency or extent of discovery … if it determines that …the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues," while Rule 26(b)(2)(B) states that a "party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost."
The cost of e-discovery in litigation is perhaps the most discussed topic among litigators in the past decade. One reason that cost has been such a contentious issue is that, in typical litigation, e-discovery production is asymmetrical, with the producing party having to bear the large costs of data gathering, processing, review, hosting and production. If e-discovery production were a burden borne equally, both sides would feel the pressure to keep costs down and so, presumably, they would.
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Source: law.com
By: Leonard Deutchman
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ATTENTION LEGAL PLAINTIFFS: make sure to only request relevant electronically stored information (ESI) within litigation discovery when negotiating in 26(f) Conferences or else if you happen to lose be ready to pay the prevailing defendant’s e-discovery bill. Case in point, Race Tires America, Inc. (RTA) v. Hoosier Racing Tire Crop. (HRT). After ruling in favor of co-defendants HRT and Dirt Motor Sports, Inc. (DMS), the United States District Court in Pennsylvania made the losing plaintiffs, RTA, pay more than $367,000 in e-discovery costs.
This outcome and other recent rulings by the courts should make corporations and their legal departments aware of the risk associated with failing to conduct a proper cost estimation/analysis before requesting outlandish and exorbitant e-discovery requests. Looking back, if RTA had conducted such a proactive analysis, they likely would have saved more than $367,000 in this matter.
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