Cost Shifting in e-Discovery: A Comparative Analysis Between America and Europe

http://ow.ly/7xmWH

A law review article by law student Umar Bakhsh posted on the National Law Review website.

This article discusses eDiscovery costs and looks at differing models for litigation, comparing the U.S. to the EU.

The article states, "With the increased volume of ESI comes an increased cost of e-discovery. The cost of discovery has increased to the point that an entire new industry has been created; firms are now available that perform no function other than searching through ESI of businesses, looking for information that is discoverable or otherwise relevant to their cause. Costs associated with producing discovery requests include searching ESI, extracting relevant documents and materials, reviewing them for privilege, and then paying attorney’s fees.

Traditionally, the cost of discovery is borne by the producing party. This principle has translated to e-discovery as well. With this shift in technology, the traditional discovery model needed to be modified. Given the volatile nature of e-discovery, and the possibility of the cost creating an undue burden on the producing party, American courts have started implementing cost shifting principles that allow for all or part of the costs of production to be shifted from the producing party to the requesting party."

The article provides footnote references throughout and serves as a good research source on the topic of eDiscovery.  The article discusses the American litigation model, and compares some key differences between the U.S. and EU.  The article points out, "Discovery, typically called disclosure, in Europe is fundamentally different than the American model. A combination of privacy laws, tradition, and diversity amongst member countries has caused Europe to develop a unique approach to discovery.Traditionally, the losing party in a European court is liable not only for the final judgment, but for a portion of the winning party’s attorney’s fees and litigation costs as well."

The article further states, "Compared to the American system, discovery requests in Europe are treated differently. Parties must request documents with a high level of specificity, and although they can obtain information regarding their opponent’s storage systems, they cannot provide blanket discovery requests. The European system allows courts to maintain rigid control over the scope of discoverable material. European courts use a proportionality standard to determine whether or not to allow discovery. The court considers (1) the importance of the requested information; (2) the amount in dispute; (3) the cost of production; (4) the ease of production; and (5) the financial position of the parties."  In addition, the article also points out a major difference, the increased level of privacy afforded in the EU.

The author also writes, "The aim of any e-discovery cost shifting approach should be to maintain efficient administration of justice, uniform results, and fair access to the discovery process regardless of an individual party’s wealth. An ideal approach to e-discovery and cost shifting would not only shift costs when necessary, but also aim to reduce costs altogether."