Readers of MassTortDefense know that the burden of today’s e-discovery can be a significant cost factor in mass torts. Moreover, any failure to execute a good e-discovery strategy can have significant substantive effects on the litigation, even beyond the threat of monetary sanctions. Some of these issues were recently explored as the U.S. Chamber of Commerce Institute for Legal Reform surveyed chief legal officers at Fortune 100 companies. The survey provides some insights into the views and experiences of the largest U.S. corporations with discovery in civil litigation:
-On average, 45‐50% of respondents’ civil litigation costs in 2007 related to discovery activities.
-Discovery of ESI accounted for, on average, a significant share (between 33‐39%) of total discovery costs.
-Costs associated with e‐discovery vendors were reported in 63% of large cases. When used, e‐discovery vendors accounted for, on average, 10‐12% of total costs.
-About 61% of case respondents felt that certain discovery requests received from the opposing party were designed to impose undue settlement pressure by increasing the costs to continue the litigation.
-In both state and federal court, the company respondents reported that more than half of their civil litigation matters involved the receipt of discovery requests that sought information beyond the claims or defenses at issue.
– About 31% of company respondents reported that at least 40% of the time ESI requested from them by the opposing party is not reasonably accessible.
– Most company respondents see cost shifting related to e‐discovery on an infrequent basis. But, when cost shifting occurs, many feel the burdens are unevenly placed on themselves vis‐à‐vis the opposing party.
The ILR notes that compared to paper‐based records, discovery involving business records maintained as ESI is still in its relative infancy. Many companies are wrestling with the cost and logistical considerations associated with discovery of ESI. Rule 26(f) meetings, which require parties to meet and discuss issues related to preserving ESI, do not seem to be making significant strides in alleviating the potential abuse issues. MassTortDefense has posted about new Federal Rule 502, dealing with inadvertant disclosure of privileged materials.