The public comments to the proposed amendments to the Federal Rules of Civil Procedure “made clear that the explosion of ESI will continue and even accelerate,” and “the litigation challenges created by ESI … will increase, not decrease.”1 Judges have noted that the growth of ESI, and the rise of e-discovery have been “most jarring to the system” of legal justice.2
Continuous Explosion and Rising Costs
Discovery in litigation is measured in gigabytes, terabytes, and now even in petabytes. A study quantifying discovery costs reported that more than half of the cases examined involved at least 100 gigabytes of ESI.3 For perspective, 100 gigabytes of ESI is equivalent to 6.5 million pages of Word files; 1 million pages of email; 16.5 million pages of Excel files; and 1.7 million pages of PowerPoint files.4 The study shows that in almost half of the cases “production costs,” which cover collection, processing and review, ranged from over $40,000 to $900,000 per gigabyte, with total production cost reaching as high as $27 million.5 Not included in this estimate are preservation costs, which extend to matters that never reach discovery and even to situations where no complaint is ever filed. Preservation triggers internal costs, including attorney, paralegal, IT personnel, and other employee time, as well as costs to store archived data, and purchase and license applications and hardware to manage preservation.6 For large organizations, annual preservation costs, by conservative estimate, exceed $40 million.7
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