Civil litigation is expensive in the United States. A plaintiff can file a suit based on evidence it knows or assumes will be in the defendant’s files. To access that evidence, parties must participate in discovery, which is a primary driver of litigation costs.

Executive Summary

Attorney reviews of hundreds of thousands, and sometimes millions, of documents for substance, privilege and relevance is a primary driver of discovery costs. Here, Zelle LLP's Shannon O'Malley reviews tips and tools for reducing the costs and efforts. Document review software, for example, can identify file duplicates and can cluster near-duplicate documents or thread email chains, giving reviewers the ability to look at all emails in a chain at once.

In the “old days”—before email and electronic storage were used as primary business communications and records—attorneys directed clients to search paper files for relevant documents to produce in response to discovery. But today, more companies are going “paperless,” communicating almost entirely through use of electronic communications and electronically stored records (ESI).

The business use of emails, PDFs, Excel spreadsheets, PowerPoint presentations, Word documents, drafts, final versions and databases makes the amount of data that should be preserved, reviewed and produced almost unreasonable. Furthermore, both federal and state Rules of Civil Procedure now require parties to produce documents in “reasonably usable form.” This requires parties to produce documents that originally existed as ESI with the metadata associated with them.

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