The proliferation of e-discovery in civil litigation has radically altered the cost/benefit calculus of initiating and defending actions, particularly for large organizations with terabytes1 of potentially relevant electronically stored information (ESI). The staggering price tag for harvesting, reviewing and producing vast amounts of electronic data has immeasurably increased the in terrorem effect of meritless litigation.
This article proposes a simple measure to rebalance the risks and rewards for parties involved in civil litigation, while preventing the potential abuse of e-discovery to extract nuisance settlements from defendants. Specifically, this article argues that all e-discovery should be stayed during the pendency of any motion to dismiss unless the plaintiff agrees to reimburse the defendant for all e-discovery costs in the event that the defendant’s motion to dismiss is granted.
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