Although the proposed Federal Rules of Evidence 502 aims at reducing the cost of e-discovery, businesses can also play a critical role in managing this process.
In an article entitled "Preparation and Communication are Key to Managing E-Discovery Costs," (published in 25 No. 22 Andrews Toxic Torts Litigation Reporter 3, December 5, 2007), Richard Friedman of Dreier LLP explains the various ways businesses may prepare to produce electronically stored information (ESI) and thereby controlling both their costs and reducing the potential for expensive errors. Some pointers--
- Adopt uniform procedures makes e-discovery a more manageable process with more predictable costs.
- Through communication and negotiation, counsels can reach agreements on the scope of electronic discovery as early as possible resulting in significant cost savings for both sides, by reducing litigation costs as well as the volume of ESI that must be reviewed.
- Identify the information that the organization collects and generates and the means by which it is stored. Organizations that lack adequate knowledge of both their inventory of information and their information technology systems risk seriously disadvantaging themselves at the initial Rule 16(b) scheduling conference and subsequent pretrial conferences.
- Limit the kinds of information that are generated on a daily basis to reduce their potential exposure or to control their storage and retrieval costs, organizations may want to prevent certain kinds of information from being generated.
- Initiate and enforce litigation holds to preserve relevant information in the event of a lawsuit. This step is necessary to prevent potentially responsive information from being routinely destroyed or deleted when there is a reasonable expectation of imminent litigation and certainly after litigation is pending.
- Take advantage of techniques and technology that will reduce the universe of ESI that needs to be reviewed, as well as what needs to be produced in litigation.
While it remains to be seen whether Rule 502 will be adopted, businesses and law firms alike can certainly follow Mr. Friedman's advice on e-discovery cost control.