“the vue”: managing rising defense & e-discovery costs

““The Vue”: Managing The Vue”: Managing Rising Defense & Rising Defense & E-Discovery CostsE-Discovery Costs

TheThe VVueue

PersonalitiesPersonalities

HOST:

• Jennifer Rothstein, Esq., JD, Insurance Discovery Specialist, ACT Litigation Services, Inc.

SPECIAL GUESTS:

• Andrew Forstenzer, Esq., Executive Vice President & General Counsel, Crump Group, Inc.

• Tony Glenn, MBA, Senior Vice President, U.S. Casualty and Specialty Casualty Claims, Liberty International Underwriters

• Bruce Meckler, Esq., Partner, Meckler Bulger Tilson Marick& Pearson LLP

• Patrick O’Doherty, RPLU, Vice President & Managing Director, Excess & Surplus Lines, ProAssurance Companies

Hot TopicsHot Topics

• Defense costs are increasing and can erode policy limits

• Factors contributing to increase: Increase in litigation (D&O class actions; employment

litigation; coverage litigation) Expert witness costs Discovery costs Exponential growth of electronic documents (types of

cases with largest volumes of documents)

• Underwriting the risks• Questions from the audience

Litigation TrendsLitigation Trends

• Bankruptcy, class actions, and regulatory actions are up – especially in the financial sector 40% of respondents have seen an increase in wage &

hour, multi-plaintiff labor and employment since 2008

• Effects of the economy: 80% of companies surveyed have seen litigation

budgets stay the same or increased since 2008

Source: Fulbright’s 6th Annual Litigation Trends Survey Report

Expert witness costsExpert witness costs

• Vary by discipline

• Vary by venue

• Creative solutions

Discovery v. e-DiscoveryDiscovery v. e-Discovery

• Discovery - “the pre-trial phase of a lawsuit in which each party can request relevant evidentiary information through depositions, interrogatories, requests for admissions and requests for documents.”

• Electronic discovery - any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal case

• Examples of electronic data• What makes electronic data different?• Types of litigation generating highest costs• Large carriers have cited 45% to 75% of defense

costs for D&O claims now come from e-Discovery

e-Discovery Costse-Discovery Costs

• Types of litigation generating highest costs

• 93% of all corporate documents are created electronically

• Predictability

• Hidden costs

• Techniques to mitigate or manage

• Can anyone control this? Who?Source: University of California Berkeley, 1999

e-Discoverye-Discovery

• Trends

• Will e-Discovery affect lawsuits settling versus going to trial?

• Risk management measures

• Effective and defensive management of costs and risks

Controlling the CostsControlling the Costs

• Improved and earlier claims notification by insured to carrier

• Increased involvement by claims professionals in eDiscovery cost and process oversight

• Greater use of alternative dispute resolution

• Ongoing review of document retention policies

• Improved discovery readiness

• Alternative billing practices

• Outsourced review

Underwriting The RisksUnderwriting The Risks

• Can these exposures be effectively underwritten?

• Identifying risks with greater than average vulnerabilities

• Changes needed in risk selection process?

• Impact to rate making – when does the other shoe drop?

Questions from the audience?Questions from the audience?

Follow the “Vue”…Follow the “Vue”…

• Jennifer Rothstein – jrothstein@actlit.com

• Andrew Forstenzer – andrew.forstenzer@crumpins.com

• Tony Glenn – tony.glenn@libertyiu.com

• Bruce Meckler – bruce.meckler@mbtlaw.com

• Patrick O’Doherty – podoherty@proassurance.com