Tara Emory, PMP

Does your e-Discovery strategy for a new case include determining what costs should be paid by the other party? A little advance planning can save you a lot of money. If you can show that the burden of certain information outweighs its likely benefit, you may be able to shift costs to the other side, or even avoid production altogether.

The use of 502(d) orders is catching on, as the burdens and risks of privilege protection grow along with increasing volumes of documents in discovery. In many courtrooms, judges will ask the parties to agree to a 502(d) order if the parties do not raise it themselves. At the November Georgetown Law Advanced eDiscovery Institute in November 2013, Judge Waxse went so far as to say that he believes it is malpractice per se for attorneys to engage in discovery without a 502(d) order.

If the burdens of discovery can seem harsh to a litigating party, they can seem downright draconian to non-parties. Litigating parties, at least, often have leverage to negotiate the scope of discovery given their own power to subpoena. They also have the expectation that discovery and other costs of litigation will be justified if they win their case.