Slide 1

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


Slide 2

The

Vue


Slide 3

Personalities
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


Slide 4

Hot 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


Slide 5

Litigation 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


Slide 6

Expert witness costs
• Vary by discipline
• Vary by venue
• Creative solutions


Slide 7

Discovery 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


Slide 8

e-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


Slide 9

e-Discovery
• Trends
• Will e-Discovery affect lawsuits settling
versus going to trial?
• Risk management measures
• Effective and defensive management of costs
and risks


Slide 10

Controlling 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


Slide 11

Underwriting 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?


Slide 12

Questions from the audience?


Slide 13

Follow the “Vue”…
• Jennifer Rothstein – [email protected]
• Andrew Forstenzer – [email protected]
• Tony Glenn – [email protected]
• Bruce Meckler – [email protected]
• Patrick O’Doherty – [email protected]