Who Should Bear The Cost Of E-discovery?

The excessive amount of digital information that is being created and transmitted everyday within organizations has made handling and storage of data for e-discovery purposes a grave challenge . Due to its expensive nature, ediscovery tools has now become a cause of concern for both the affected parties and the federal courts as there is a constant tug-of-war as to which party should bear the electronic disclosure costs.

Per FRCP rules, preservation of ESI for civil litigation is mandatory as it is crucial evidence that can be requested by lawyers to substantiate claims attached to cases. The moment a company is issued a lawsuit notification, it becomes their legal obligation to preserve any kind of data until the outcome of the lawsuit is declared. Any company that is found to be negligent in preserving data or of intentional spoliation of evidence can be subject to legal sanctions that could cause immense damages to their case.

The burden of storing and maintaining massive ESI adds to costs. Thus the parties that perform the electronic evidence discovery are appealing to courts to apply the costs to the requesting parties. However, the courts consider several factors, such as the case requirements, the resources available to the parties, the level of controversy, the questionable issues and the significance of e-discovery proceedings before deciding whom to hold responsible for bearing the costs.

Court Provisions on Cost Issues

The courts have identified some drawbacks that add to e-discovery costs:

Access to Stored Documents – When data is stored in inaccessible formats, it raises costs due to the time invested in culling relevant information from a huge mass. An organization with widespread branches has a complex network of data that is transmitted across various regions, and the core challenge is to find the datas exact location. Accessibility of documents is significantly diverse in an organization. From a business point of view, the possibility of acquiring valid documents decreases with the age of the record. From a legal prospective, the accessibility period depends upon the period in which the document is expected to be available. Thus the expected period and retention period can vary from two or three years to seven years. Organizations need to develop internal guidelines for the retention and destruction of documents.

Governing Policies for Document Retention As document retention policies are reliant on the needs of the business, organizations need to have knowledge of the retention period of each document type so that it is consistent with federal, state and local regulations. The document policies should be developed to down-size the time and effort spent in locating relevant information. They should also provide a framework for storing confidential data.

To avoid being overburdened with the cost of electronic discovery, attorneys can help their clients develop a document retention policy that can help identify document types and their legal retention periods. In case of any potential litigation, attorneys and their clients should know where the documents are and the methods used to store them. Attorneys can actively find out what documents are required from the opposition and keep their clients updated to avoid any accidental destruction of intellectual property. Organizations should employ an effective document retention policy that stores documents in accessible mediums for retrieval in case of any anticipatory litigation software. This can reduce organizational costs by maintaining and destroying documents at the right time.