Vermont State Archives & Records Administration

Spotlight on Legal Issues

Litigation Costs and "Discovery" of Electronically Stored Information

Information is exploding in quantity and detail, and more and more of it is being created or stored in electronic form. Often this Electronically Stored Information ("ESI") is found in and across multiple locations and systems. These trends give rise to considerations that were unknown only a few years ago.

Under the United States legal system, it has long been presumed (except for narrow exceptions) that each litigant bears its own attorney's costs. There have also long been rules allowing a court to award the winning party certain "costs" associated with commencing or defending the case, especially as relates to copying and production of documents requested by the other side. In the "old days" these photocopy costs, if a party even bothered to seek them or a court awarded them, were often negligible in comparison to the main stakes in the case.

ESI is changing all of that. In complex current-day litigation, each side may end up deploying tremendous resources to identify, organize, and produce ESI that may be required to be disclosed as part of the case. This can involve substantial, sometimes immense, costs.

While this is still an evolving area, there is a trend in which courts are requiring the losing side to reimburse the winning side for the costs that the winner incurred in production and provision of ESI during the litigation. Unlike the photocopy charges of old, these "costs" in some cases run into huge figures. A party that loses a case is faced with the second loss of reimbursing the other side's costs associated with ESI.

This new risk exposure represents one more imperative reason to manage information in a systematic way and on an ongoing basis before a crisis arises. This comes on top of the fact that management of ESI is increasingly important to success in litigation.

Vermont agencies and departments can and should utilize VSARA and DII as resources in developing and implementing comprehensive, format-neutral records management. Questions regarding litigation and discovery should be directed to agencies' legal counsel or the Vermont Attorney General's Office.