E-Discovery: Costs, Sanctions and Client Expectations

E-discovery is becoming increasingly important in litigation and not just for large law firms taking on billion dollar corporations. Electronic documents can account for as much as 90% of all information created today, in the form of email, social media posts, blogs and other forms of electronic data that could be discoverable in litigation. In fact, e-discovery has been a factor in many small court actions, including employee-employer disputes, bank-customer disputes and personal injury claims in which a small firm or solo practitioner may have been retained. For this reason, it is important for attorneys to understand the electronic discovery process; the costs involved and relay the importance of defensible e-discovery process to their clients.

 

E-Discovery LitigationE-Discovery Costs

Experts estimate that e-discovery has been known to consume between 50-80% of litigation budgets. As firms try to find a balance between addressing the ever-growing amounts of electronically stored information and narrowing the scope of discovery; the use of electronic media and information storage “in the cloud” grows. In some cases, the cost of and methods employed in e-discovery have overshadowed the merits of the issues at hand. One way that firms and corporations can minimize these costs is by using an electronic discovery service provider, such as Advanced Discovery, early in the process. Using an electronic discovery services provider allows for collaborative discussions surrounding case specific considerations in relation to is electronic discovery and to narrow down the body of documents to those that are most likely to be pertinent to the litigation.

Client Expectations

It is important for lawyers to learn as much about e-discovery as possible, to enable well versed explanations to their clients surrounding the importance of electronic discovery, as most clients  may not intuit relevance  in the email they sent three months ago, or how the receptionist’s Facebook post  would have any effect on a lawsuit. Electronic discovery service providers, such as Advanced Discovery, are well-versed in the various phases of e-discovery, and can explain to clients the importance of preserving and collecting such information.

Sanctions

One very important reason to educate clients about adhering to defensible e-discovery processes is to avoid the potential for sanctions; which have been on the rise as judges learn more about electronic data document retention and recovery. One thing that should be explained to clients is that judges have been known to issue sanctions against the client (and not singularly the firm representing them) for egregious failures in the methodologies applied to the e-discovery process. Therefore, explaining clearly what electronic discovery is and the importance of providing adequate discovery of those electronic documents, if requested, is crucial to reducing litigation costs.

Rules relating to e-discovery are still in their infancy stages, but the courts are making an effort to address problems in common law as they arise. Because the “nuts and bolts” of e-discovery can fall under broad categories, it is difficult to regulate every facet of technology. In order for the process to work, all parties need to communicate extensively and actively seek knowledge of e-discovery. Employing an electronic discovery service provider is one of the best ways to achieve these, reducing costs and minimizing the potential for sanctions.

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