E-Discovery

By: Sid Bahl

With today’s technology changing at a rapid pace, the amount of electronically stored information increases at a tremendous rate.[1] Electronic discovery (“e-discovery”) is the process of producing electronically stored information that is either relevant to a party’s claims or defenses.[2] This particular aspect of discovery is incredibly fascinating given its wide scope and the tremendous burden it can place on a producing party.[3] It can be prohibitively expensive because of the volume of discoverable electronically stored information available.[4]

There are three burdens, in particular, which e-discovery poses on a producing party: (1) preserving electronically stored information[5]; (2) producing large volumes of electronically stored information[6]; and (3) reviewing the electronically stored information for relevance.[7]

The costs associated with electronic storage are something that businesses of all sizes need to build into their financial forecasts and budgets. The “significant costs” associated with storing electronically stored information are no longer appropriate justifications for failure to comply with a production request. It is also important to note that a business with larger electronic storage needs presumably has greater financial ability to meet those needs. Quite simply, it is no longer an incidental cost, but now a cost of doing business in the sue-prone society we live in.

With well-organized and accessible electronic storage, producing electronically stored information, regardless of volume, will not impose an exorbitant encumbrance on the business. Without it, however, the resources expended in this process could severely disrupt the producing party’s business.[8]

It goes without saying that reviewing the electronically stored information for relevance can be streamlined significantly with an efficient system in place. What is ordinarily a time-consuming and costly process,[9] a well-indexed system can allow a business to quickly respond to a discovery request without expending significant resources.

I am also a graduate student at the Newhouse school, pursuing a degree in public relations. Nearly all public relations plans, especially those for larger businesses, revolve around crisis communication and the need for a plan in place in the event of a crisis. In my opinion, the burdens e-discovery poses are simply accompanying parts of a business’ crisis plan. That is not to say that a business should plan around potential involvement in litigation, but preparing to respond appropriately is nothing more than prudent. Aside from the reasons articulated, the court-imposed sanctions for failing to comply with an e-discovery request provide, on its own, enough reason to implement a system designed for efficient response.

[2] Fed. R. Civ. P. 26(b).

[3] See Fed. R. Civ. P. 26 advisory committee’s note (2006).

[4] See Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568, 572 (N.D. Ill. 2004).

[5] Scott v. IBM Corp., 196 F.R.D. 233, 249 (D.N.J. 2000).

[6] Zubulake v. UBS WARBURG LLC, UBS, 217 F.R.D. 309, 314 (S.D.N.Y. 2003).

[7] Byers v. Ill. State Police, 53 Fed. R. Serv. 3d (West) 740, *10 (N.D. Ill. 2002).

[8] Treppel v. Biovail Corp., 233 F.R.D. 363, 372 (S.D.N.Y. 2006).

[9] Zubulake I, 217 F.R.D. at 320.