Using ESI discovery teams to manage electronic data discovery

Abstract

Introduction The importance of electronically stored information (ESI) in litigation has increased greatly over the past decade. Responding to the "discovery" requests made by all litigating parties has become a significant management function and cost center for organizations engaged in litigation. Today, over 92% of all business records and data are created and stored electronically; most are never reduced to hard copy. After civil litigation is filed, a pre-trial "discovery" phase occurs during which courts require litigants to identify and produce potentially relevant information to their adversaries. Settlements often occur before a trial is held, making ESI produced during the discovery phase and evaluated by the parties often determinative of litigation outcomes. Managing discovery of electronic information requires close coordination among managers with widely diverse technical IT expertise, litigation experience and operational authority. Multi-disciplinary "ESI Discovery Teams" are a key mechanism that can be used to achieve the necessary coordination and continuing oversight over enterprise discovery activities, particularly in larger organizations. A 2007 litigation survey of 253 U.S. corporations reveals that 83% had new lawsuits filed against them in 2006 implicating e-discovery management.1 The most common subject of these law-suits was labor/employment, contract enforcement and personal injuries. Litigation was also significant at smaller companies surveyed, 17% had at least one lawsuit claiming $20 million or more, and at mid-sized companies, 98% reported one or more lawsuits of $20 million or larger. Costs of litigation are high, 71% of the companies reported litigation costs exceeding $1 million per year and 40% had litigation costs over $5 million per year, excluding settlements or judgment amounts. Over half the U.S. firms surveyed use outside e-discovery IT vendors to collect, identify, verify, recover and produce ESI and 30% reported using outside legal counsel with special expertise in e-discovery. These e-discovery vendors had revenues of $1.95 billion in 2006, a 50% increase over 2005, and $130 million was spent for forensic software, data recovery and production.