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Evaluating e-Discovery Solutions to Reduce Cost and Risk, and Comply with the FRCP

By Browning E. Marean
April 29, 2008
More than 40 sanctions cases ' resulting in millions of dollars in fines ' have been decided in one year since revisions to the Federal Rules of Civil Procedure ('FRCP') took effect. In contrast, only two have been recorded under the Sarbanes-Oxley Act since it was put into place in 2002. The 2006 changes to the FRCP specifically require that companies ensure all potentially relevant electronically stored information ('ESI') associated with litigation is preserved and protected, with a subset ultimately produced when required. While on the surface this may sound simple, those in the trenches on both sides ' legal and IT ' have war stories to tell of hard lessons learned. Organizations that do not take a comprehensive approach to managing ESI for discovery may fall prey to fines, sanctions and worse.

All too often, failures to preserve and produce ESI occur when organizations rely on error-prone, manual electronic discovery processes. Clearly, a deeper understanding of how to evaluate e-discovery technology solutions is sorely needed. The following is an examination of the most important criteria for evaluating an e-discovery solution that will maximize cost savings, reduce risk and improve business efficiencies for you or your clients.

Demand for e-Discovery Cost Savings

The need to reduce e-discovery costs and complexities associated with FRCP compliance is one of the most important evaluation criteria that legal practitioners and IT personnel should consider. Many companies face what I call a 'risk of extortion by discovery.' Let's suppose that a case would cost a company a total of $4.5 million, including $3.5 million for traditional e-discovery costs. If the dispute is over a matter with a value less that that, the case will never get its day in court because the benefits do not outweigh the burden ' the e-discovery costs are prohibitive. It's reasonable to expect that many companies are predisposed to settle a lawsuit, in part to avoid the cost of the discovery process.

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