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Tip of the Month, February 2011 - Cost- and Risk-Reducing Options for Production of Electronic Data

28 February 2011
Mayer Brown Newsletter
Scenario A large financial firm is defending a class action law suit which includes fraud claims. The firm’s investment process generates mountains of data, including not only email but also databases, spreadsheets, and proprietary file formats used by internal systems. Metadata will likely also constitute responsive data. The company’s General Counsel is interested in minimizing the litigation costs, including the cost of production. Measuring Production Costs When deciding which production method would be most cost-efficient, it is important first to decide how costs should be measured. In cases with substantial data produced by both sides, it makes sense to consider not only the cost of producing one’s own data, but also that of reviewing files produced by the opposing side. Conversely, if the bulk of the data is produced by one party, the cost of reviewing materials produced by the other side is not directly relevant. Even then, a production method that saves the other side money may be used as a bargaining chip during initial pre-trial conferences.

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