Lawyers may have been the only ones paying attention, but it's been just over a year now since the Federal Rules of Civil Procedure (FRCP) amendments on e-discovery went into effect, necessitating that companies take appropriate steps to improve how they respond to e-discovery requests, which basically refers to the methods by which electronically stored information is exchanged during a litigation process. The numbers from a recent survey on corporate e-discovery by on-demand archiving provider Fortiva show a rising problem in managing this information, as well as a rising number of resources devoted to solving it.
The first step is acknowledging there is a problem, and one-fifth of companies surveyed admit that their business has opted to settle a lawsuit to avoid the cost of recovering and searching through electronic documents. Nearly half (47%) of respondents also admit being uncertain that their legal team can effectively review relevant e-mail in the 99-day window allowed under the law.
To address this costly "capability gap," 51% say they have implemented or are planning to implement search and review technology for e-mail. However, the tools must be backed up by a strict policy environment. More than one-third of businesses (36.7%) are already enforcing a formal retention policy for e-mail, while another 40% are currently in the planning stage to enforce a formal policy. Another 36% of respondents are currently planning to create and enforce a formal "litigation hold" process for e-mail and other data.
Other findings from the survey relevant for manufacturers include:
- 37% of respondents conduct more than 21 searches through old e-mail to gather information for legal reasons each year.
- Nearly half of respondents (40%) report that their organization searches through e-mail five or more times each year in response to a formal legal discovery request.
- 35% are not confident that e-mails are fully reviewed to ensure attorney-client privilege is not waived before being sent to opposing counsel during discovery.
- Of those who are familiar with the costs of litigation, more than half (51%) claimed the average cost of litigation (excluding settlement costs) was over $200,000, with 8% putting the average cost over $1 million.