The Cost of Producing Electronic Documents in Civil Lawsuits: Can They Be Sharply Reduced Without Sacrificing Quality?

T he cost of producing electronic documents in a civil lawsuit has become a policy concern in recent years. Pretrial electronic discovery, or e-discovery, consists of essentially three activities: (1) collecting potential sources of information in response to an opposing party’s demand, (2) processing that information to reduce its volume and organize it for review, and (3) reviewing processed digital information to identify relevant and responsive documents to produce and privileged documents or confidential information to withhold. With the explosive growth of digital information, many believe that the cost of these activities—particularly review—accounts for an increasing proportion of total litigation costs. A RAND study assesses e-discovery costs and describes how they can be reduced without compromising the quality of the discovery process. It also examines what litigants perceive to be the key challenges of preserving electronic information for the purposes of litigation. The researchers worked with eight very large companies in diverse industries that were willing, with assurances of confidentiality, to provide information about their discovery expenses in 57 large-volume cases. They also interviewed company representatives about their preservation duties and concerns.