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The costs associated with discovery in litigation have skyrocketed in the past decade, fueled in large part by the discovery of electronically stored information (ESI) or “eDiscovery.” Confusion over the technologies associated with eDiscovery and inadequate assessments of a corporate litigant's relevant ESI have resulted in legal counsel's inability to resolve discovery disputes, accounting for a large portion of the increased costs.
ESI discovery disputes have become protracted for one common reason: The parties do not sufficiently prepare for ESI discovery. The causes for such lack of preparation are that most litigants wait for the document requests to be served before they conduct a search for responsive information and, therefore, they are not in a position to discuss ESI discovery (scope, format, cost, etc.) with their opponents. Frankly, the technology and amount of data overwhelm both corporations and counsel alike. It need not be this way.
Corporations have had to become more strategic about how they handle litigation, especially during the discovery phase, in order to manage this increasing expense. Properly employing the Seventh Circuit eDiscovery Principles (see www.ilcd.uscourts.gov/Statement%20-%20Phase%20One.pdf), even if you're not in that jurisdiction, is one strategy that will help contain litigation costs.
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