Should plaintiff attorneys pay out of pocket for discovery expenses?

September 22, 2022

September 22, 2022

Should plaintiff attorneys pay out of pocket for discovery expenses?

In short, no. With case expense financing, practitioners can devote adequate funds to discovery endeavors without financially overleveraging themselves or their firms.  

While defendants may complain about bearing costs of production to plaintiff legal teams on fishing expeditions, plaintiffs conducting discovery face significant costs associated with reviewing and analyzing the documents and information they obtain. Many of the largest litigation expenditures go toward document discovery, depositions, and other pretrial discovery. And plaintiff lawyers usually face these expenses without resources comparable to those of their adversaries.

Review of emails and other electronically stored information (ESI) is a considerable source of discovery case expenses. ESI review accounts for more than 80% of total litigation spending, or $42.1 billion dollars a year, a figure that likely will likely rise as data volumes increase. Other factors affecting ESI review costs include the type of data, the complexity of the review, and the review methodology.

Although eDiscovery costs are staggering, some observers think these costs only call attention to other, longstanding problems. Discovery, they say, has always been expensive because of lawyer obstructionist tendencies in propounding and responding to discovery requests.  

It’s true that several lawyers have a propensity toward drafting overbroad, burdensome discovery requests and, just as often, sending discovery responses that repeat broad and formulaic objections. In a way, it’s tradition. Practitioners don’t want to waive any objection they might later need to argue to the judge. Nor do they want to make it too easy for the other side to get the information they need. But adding pages of extraneous requests and objections to every submission and creating situations that necessitate motions to compel will irritate judges and run up cost and time investments for everyone.  

These factors certainly contribute to increasing litigation costs and can disadvantage plaintiffs operating on an uneven playing field against big defendants. Schemes that challenge the typical model of production costs borne by the producing party could create further challenges for plaintiff representatives without litigation cost funding.

Cost-shifting advocates argue that forcing the producing litigant to carry the cost disincentivizes good faith in tailoring discovery requests. Particularly in multi-district litigation cases, they say, a conventional proportionality analysis becomes an ineffective check in the face of bare allegations of serious harm to large groups, even if baseless. They suggest that this dynamic gives plaintiffs latitude to deploy expansive discovery requests to drive production costs up into the millions of dollars and pressure defendants into settlement. The solution they propose is for producing parties to cover the costs of only a core of undeniably relevant information and for the requesting parties to cover production costs for anything beyond the core or for claims eventually deemed meritless.

Of course, most cases are unlikely to be affected by cost-shifting arrangements, and discovery isn’t always hugely expensive for plaintiffs. But when the financial demands in a case skyrocket, LevelEsq’s solutions enable you to continue to fight for your client without fear of losing a hefty monetary investment.  

Our superior case expense financing features quick and seamless access to capital for your case, low repayment rates, and an easy-to-use portal for tracking case funding information and requesting additional monies as needed any time of day. With our Lawsuit Cost Financing, you can take on expensive cases and keep the liquidity you need to grow and expand your firm.  

LevelEsq’s unique lawsuit insurance, Litigation Cost Protection, allows attorneys to recoup their case cost investments in unsuccessful lawsuits. Insure up to $500,000 in the event of a loss at trial, allowing you to focus on pursuing justice with confidence and peace of mind rather than fretting over ever-increasing out-of-pocket costs.  

With LevelEsq, fight your best fight while boosting profitability and shielding your firm from the potential financial blow of a trial loss.

How can we help your firm?

Lawsuit Cost Financing

Quick and seamless access to capital to fund your case expenses.

Litigation Cost Protection

Protect the downside with insurance coverage for litigation costs.