E-Discovery: 9 points impacting discovery costs

Managing different rules among the 50 states means managing different risks.

There was a time when state court civil disputes did not involve the risk of astronomical e-discovery costs. That time as passed. Just as e-discovery in federal courts reaches some semblance of uniformity, the 50 (very independent) states have begun to realize that discovery in the Digital Age will necessarily involve "staggering" amounts of electronically stored information (ESI).

Since 2003, 30 states have adopted rules or enacted statutes that specifically address ESI management, preservation and production in civil disputes. New York and seven other states have developed their own methods for managing e-discovery, while California (and 21 states like it) generally follows the Federal Rules of Civil Procedure. The remaining 20 states (e.g. Illinois) have yet to adopt any e-discovery rules, but most recognize "the increasing reliance on computer technology," and some explicitly (by judicial interpretation of existing discovery rules) obligate civil litigants to produce ESI as part of their state's existing discovery obligations.

Although there is no substitute for becoming familiar with each state's e-discovery rules before formulating an e-discovery plan, there are a few fundamental practices that will help manage e-discovery costs (and help avoid sanctions) regardless of your jurisdiction.

Savvy litigants should:


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Steven Hunter

Steven V. Hunter, Esq. is a partner in the Chicago office of Quarles & Brady LLP where he specializes in business litigation.

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