Without a doubt, virtually every aspect of electronic discovery is expensive, and with the recent amendments to the Federal Rules of Civil Procedure, litigants are being required to incur the costs associated with e-discovery more frequently and earlier in the litigation process. Liability insurers are increasingly aware of the mounting e-discovery costs incurred by business litigants and are beginning to address the costs of electronic discovery in their insurance products. Either through training programs, price adjustments, policy exclusions or even new insurance products such as “electronic discovery insurance,” insurers are seeking to find new ways to recover and control the costs of e-discovery for which they may be asked to pay.
This heightened focus by insurers on electronic discovery costs should put the typical business litigant on notice that it’s likely that its document retention policies and the e-discovery preparedness plans may become a part of its insurance carriers’ underwriting decision. If those policies or plans are not adequate, that may affect the cost of or the ability to obtain insurance. Fortunately, there are steps litigants can take to prepare themselves for a litigation involving electronic discovery — steps that also can minimize the related insurance coverage issues.
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