Companies continually confront the exposure and expense attendant to electronically-stored information (ESI) in litigation. Clients used to worry about a single “smoking gun” document in discovery. Now, the sheer volume of ESI companies often must produce can be crippling, even in cases with relatively little risk or merit. Legally-imposed preservation requirements can foist enormous burden and expense on businesses even before litigation ensues.
Courts, regulators and legislators have provided limited relief. Proposed amendments to the Federal Rules of Civil Procedure, intended to narrow discovery and provide for greater proportionality between litigation expense and exposure, present some potential relief. But the amendments go only so far, and of course provide no relief for proceedings in other forums. So what are companies to do? The solution lies with appropriate self-help.