Hastings Law Journal


Kelly Foss


Discovery costs have ballooned over the last decade, in large part because attorneys must review vast amounts of electronically stored information (“ESI”) for relevancy and privilege and must collect all potentially relevant ESI on which to perform those reviews. Courts can reduce costs associated with reviewing ESI by finding that the use of recently developed search software can be “reasonable” under Federal Rule of Civil Procedure 26(g) and Federal Rule of Evidence 502. Courts also can ultimately reduce costs associated with collecting ESI by taking into account the reasonableness of parties’ prelitigation document-management systems when determining whether to require production of inaccessible ESI at a responding party’s expense. Historically, courts were more likely to require production of inaccessible documents when the responding party had assumed the risks of high production costs by storing its information in a particular manner. In recent years, courts have retreated from this approach; some courts rejected the assumption-of-risk doctrine in favor of considering the reasonableness of the responding party’s document-management policies under the circumstances, while other courts explicitly refused to consider reasonableness. The latter approach has dominated in the courts since the FRCP were amended in 2006. This Note proposes that courts reinstate the reasonableness standard when deciding whether to grant motions to compel or to protect. By doing so, courts will incentivize the implementation of document-management systems that facilitate inexpensive discovery. This proposed approach will also stimulate technological innovation in the document-management software industry, which ultimately will lead to reduced discovery costs.

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