Collecting, reviewing and producing documents is a costly element of litigation. The precipitous increase in electronically stored information (ESI) has greatly accelerated these costs. One study found ESI costs alone can account for up to 90 percent of litigation costs. Another study found ESI costs for midsize lawsuits approximate $3.5 million. Fees of this magnitude are not taken lightly.
The presumption in American jurisprudence is the producing party bears its own discovery production costs. This presumption can result in inequities in the allocation of discovery costs, particularly in instances of overly aggressive or frivolous discovery requests. These costs are amplified due to the increasing prevalence of ESI, which expands the volume of data to be searched and reviewed to unprecedented proportions.
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