More than 99% of the world’s information is currently created electronically, and nearly every piece of electronically stored information (ESI) is potentially discoverable in a civil lawsuit. In an average case today, the process of exchanging ESI with an opposing party (known generally as electronic discovery or “e-discovery”) can mean processing, reviewing and producing potentially millions of pages of electronic documents. According to one estimate, a “midsize” lawsuit is now expected to generate between $2.5 and $3.5 million in e-discovery costs alone. E-discovery, according to one commentator, “represents the greatest sea change in the practice of law in recent memory.”
Businesses can be whipsawed by e-discovery if they do not have a good handle on their data collection systems. The Institute for the Advancement of the American Legal System (IAALS), a think tank at the University of Denver dedicated to improving the civil justice system, today released a publication aimed at helping small businesses plan and prepare for e-discovery. It is called The Emerging Challenge of Electronic Discovery: Strategies for American Businesses. Larger businesses typically have legal and IT services available in-house to help guide and prepare them for a potential e-discovery onslaught. Small businesses, however, rarely have immediate access to such resources. Strategies offers practical guidance to help businesses begin their e-discovery planning and preparation now, in the hope of avoiding later court battles over ESI. No matter how much you hope to avoid going to court, waiting to prepare for e-discovery until after a lawsuit begins is too late.
The civil justice system is trying to cope with e-discovery. New amendments to the Federal Rules of Civil Procedure specifically dealing with e-discovery became effective in December 2006. But serious questions remain. Have the new rules streamlined document collection and production? Are the judges comfortable with e-discovery issues and do they recognize the potential economic impact? Are the attorneys prepared to deal with e-discovery, and to keep the costs proportional to the dispute? And what about the e-discovery industry that has cropped up to help litigants manage and produce their data? How much do e-discovery vendors cost, and are they worth the investment?
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