H.R. 4115. and Towering E-Discovery Costs Threaten Businesses
You may not know it, but the bill H.R. 4115 poses a serious threat to businesses unprepared for litigation and business e-discovery. Simply put H.R. 4115 is a bill that will reduce the number of motions to dismiss because it forbids courts to dismiss complaints until it can be proved beyond reasonable doubt that the plaintiff has no facts to back their claim regardless of how much evidence they have at the time they make the claim. Basically a plaintiff could come forward with some absurd conspiracy theory but a court would be required to see through the extensive litigation, e-discovery, and investigation until it the plaintiff was proven wrong.
Because of this bill, even if the plaintiff has no evidence or fact to back their claim, for every case the party in question must engage in an expensive and tumultuous e-discovery process. Due to the lack of efficient e-discovery methods this process can cost companies millions of dollars in a single case. These towering e-discovery costs have forced companies to turn to settlement before the process even begins. This shows that, regardless of the validity of the claim, the ediscovery could cost more than the settlement. This opens windows of opportunity for manipulation; plaintiffs could use pure theory to force an e-discovery proccess that could, simply out of luck, find evidence they didn't know existed, or they could even use the threat of an e-discovery process as a form of initimidation to force a settlement. If this bill is passed, every case brought before a court could subject companies to massive e-discovery or settlement costs.
In an interview with David Lender in the Metropolitan Corporate Counsel he stated "The concern about e-discovery costs is compounded by the fact that those costs are frequently incurred under circumstances where clients feel they did nothing wrong, yet they face multiple millions of dollars of potential discovery costs." In the same interview he also revealed that cases today are being forced to settlements after daunting e-discovery processes became part of the equation. In fact, there are less and less actual trials due to the costs of litigation, a lot of which SHOULD be decided by a court and jury -- yet the expenses make it nearly impossible to come out of that situation without significant losses.
Lender said in the same interview, "we need to get control over the e-discovery process by changing the mindset to a focus on discovering the core documents, and not everything under the sun. Until we do this, there will be fewer trials because the cost of e-discovery is overwhelming the incentive to try cases." If H.R. 4115. is passed, e-discovery and case settlement will become even more dangerous to businesses than they are today. Yet not all hope is lost, you can prepare for the risk of an expensive ediscovery process by using the right e-discovery solution. Even if H.R. 4115. isn't passed, improper e-discovery is a serious threat to your business, but if you're prepared, litigation won't be nearly as threatening as you think.
Download the Free White Paper: Why Use Cloud-Powered Hosted Email Archiving, In it, you will find the answers to: Why you should archive your content? Why hosted archiving makes sense? and What are the key issues to consider in selecting a vendor?
blog comments powered by