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Leveling the Playing Field

By Michael L. Junk and John McNulty

Document production: What once consisted of collecting a few hardcopy files from a relatively short list of “key” custodians now typically requires the retention of litigation-support specialists to accomplish not only the imaging and production of hardcopy files, but also the identification, extraction, and production of relevant electronically stored information (ESI) from computers, databases, servers, and even disaster recovery systems.

The age of ESI changed everything in terms of how quickly and easily documents are created and then stored. As a consequence, every corporate defendant in a product liability case today can expect to spend thousands if not hundreds of thousands of dollars producing documents in discovery. Indeed, it is hardly an overstatement to say that discovery costs are staggering. According to one recent survey, “for the period 2006-2008, the average company paid average discovery costs per case of $621,880 to $2,993,567. Companies at the high end [of the scale] during the same time periods reported average per-case discovery costs ranging from $2,354,868 to $9,759,900.” Lawyers for Civil Justice, et al., Litigation Costs Survey of Major Companies 3 (May 2010) (available at www.uscourts.gov/uscourts/RulesAndPolicies/rules/Duke%20Materials/Library/Litigation%20Cost%20Survey%20of%20Major%20Companies.pdf).

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