In litigation, the discovery process has always been expensive. With computers and digital technology, though, there are added layers of complexity and cost. Discovery no longer involves just reviewing boxes and boxes of papers. Regardless of the dispute — product liability, employment practices, or directors and officers — discovery now entails exhaustive searches of electronic data. This means sifting through computer hard drives, thumb drives, servers, tapes, e-mail strings, archives, instant messenger dialogue, and so on. Searching electronic data sources consumes huge chunks of time and dollars.

Now let's consider that 36 billion e-mails are transmitted each day. This pace rises 20 percent annually. Ninety-three percent of all information is now stored digitally, with 70 percent of that never actually printed. A 2007 Kroll survey revealed the following:

• Twenty-five percent of U.S. corporate in-house counsel claim to be current with all case-law developments and regulations relating to electronically stored information (ESI).
• Only half of the respondents said that their organizations had a policy regarding ESI.
• Seventy-five percent report losing time and money because of inefficient ESI processes.

Risk managers simply must seek ways to tame e-discovery costs as a volatile component of litigation expense. This is true regardless of whether a risk manager's company is fully insured, self-insured, or a blend of the two. Even if the risk manager's organization has first-dollar insurance coverage, hemorrhaging e-discovery costs can spike an account's loss ratio. This, in turn, will increase the cost of risk, inflate renewal pricing terms, or perhaps even render an account uninsurable. If a risk manager is self-insured, then e-discovery costs represent a torpedo hit to expense budgets without any cushion from insurance. While risk managers juggle many balls, taming e-discovery costs is within the risk manager's purview, whether insurance is at play or not.