What if I were to tell you that you had to spend $6 million — nine percent of your annual operating budget — to comply with an e-discovery subpoena?  And what if you were a non-party to that particular dispute?  The D.C. Circuit has upheld just such a cost in In re Fannie Mae Securities Litigation, 552 F.3d 814 (2009). 

This case highlights the importance of counsel understanding issues related to e-discovery, and the potential scope of that discovery, before entering into any type of agreement governing the future conduct of discovery in the case. Executive summary: Agreements should be carefully negotiated and counsel should not agree to unmitigated keyword searches, without reserving the right to negotiate search terms and without waiving the right to pursue cost shifting.

The New York Law Journal has published an article analyzing the Fannie Mae decision, which can be found here.