As we approach the fifth anniversary of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, the words “electronic discovery” still inspire fear and loathing for many in-house counsel. The routine, low-cost preservation, collection and review of electronically stored information (ESI) envisioned by the drafters of the 2006 amendments remain elusive goals for most litigants, and the frequent sanctions battles over e-discovery have only heightened the stakes for in-house counsel.
An entire industry of electronic discovery consultants stands ready to allay in-house counsel’s fears in exchange for what can be substantial fees. In the current economic environment, however, in-house counsel must ask, when is retaining an e-discovery consultant worth the expense? This question has become even more relevant as in-house counsel and IT managers gain increasing sophistication and experience in addressing e-discovery. Law firms also are marketing their own attorneys and IT professionals as an alternative to retaining a separate e-discovery consulting firm.