The biggest cost of litigation today is the cost of discovery. And the biggest cost of discovery is the cost of retrieving, reviewing and producing responsive documents stored electronically, while not producing those responsive documents that are privileged or contain work product.
Since many cases involve amounts at issue that e-discovery costs could easily dwarf -- and since almost all cases settle -- the challenge is to select a search and review methodology that is rational and proportionate to the amount at issue and, most importantly, that will provide parties and counsel with reasonable assurance that they are meeting their discovery obligations and containing their costs.
From the earliest stages of e-discovery, parties and counsel yearn for predictability. With the marketplace awash in e-discovery technology and service vendors, and with commentators and conferences daily promoting "cutting-edge" e-discovery strategies, surprisingly, fundamental issues relating to search methodology can be overlooked.
Two recent decisions by Magistrate Judge John M. Facciola and Magistrate Judge Paul W. Grimm, knowledgeable and active jurists in the area of e-discovery, address these fundamentals. Facciola's decision in Equity Analytics LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008), and Grimm's in Victor Stanley Inc. v. Creative Pipe Inc., No. MJG-06-2662, 2008 WL 2221841 (D. Md. May 29, 2008), teach that, whatever position lawyers advocate concerning search and review methodology, they must demonstrate with robust record evidence why the methodology is appropriate, how it will achieve the proper objective and why it should be ordered instead of the methodology advocated by the other side.
Equity Analytics and Victor Stanley may raise concern that experts will be required in certain circumstances to support the assertions of counsel, but this proposition is unremarkable. Certainly it is in line with well-established jurisprudence regarding instances when scientific and technical information is necessary to resolve disputed facts.
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