Best Practices for Managing Discovery Obligations
Article by: Trent Walton, President @ Forensic Discovery, LLC
Everyone knows that dealing with eDiscovery obligations in litigation can be challenging and expensive, sometimes to the point of being ignored. Does it have to be that way?
Let’s face it: Most of us are living in the past. At one point we got by just fine using a phone book to find a restaurant, using paper maps to get places, and mailing letters to family. Now we are in the age of instant and constant access to information and its creation. Any type of data can be provided at the click of a button. The typical individual can’t fathom the thought of not being able to look at customer ratings of restaurants, use their phone to get from point A to B with real-time traffic updates, and see instant picture and status updates of friends, family, and colleagues around the world. The digital age is gaining speed and moving faster than most can manage. Staying aware of and keeping up with the leaps in technology has become necessary in business and litigation.
Attorneys and clients, for the most part, are still struggling with eDiscovery. One must be aware of changing laws, regulations, court decisions, and a variety of information systems to meet legal and ethical duties, as well as court and legislatively imposed requirements. One must be wary of email, electronic documents, databases, backup tapes, social media, marketing materials, mobile devices and cloud information, as there is so much information in so many places in so many different formats. eDiscovery can be expensive to collect, process, review and produce, and the technology by which it is created, stored, and disseminated becomes outdated almost daily.
eDiscovery has become a critical component in every litigated or potential claim matter. It is estimated that 95% of discoverable evidence in litigation was originally in electronic format. We have to deal with, and live in, this reality.
In the days of yester-year, clients would provide attorneys with the data they thought to be relevant to the case. This worked fine until computers came around to enable everyone to create and store vast amounts of electronic data. The result has produced increased anxiety, additional areas of litigation expense, negative impact on time and productivity of attorneys and clients, and potential exposure to sanctions. Circumstances adversely impacting efficiency and cost include, but are not limited to:
Client not technologically capable of locating all the relevant information
● Client omitted to provide data, or did not know it existed
● Client thought it was more cost effective to deal with the electronic data themselves
● Client was not properly instructed by attorney on data management and failed to appreciate the appropriate scope of search, hold and retention
It is counsel’s responsibility to properly instruct and guide the client through discovery, including electronic data. This includes recommending consultants, where warranted, to assist and advise attorney and client.
Here are some common misconceptions about eDiscovery.
Misconception #1: I have to be a technical expert to deal with this.
This is not true. Look, you learn the subject matter of every case before you take it to court. Initially, don’t try to do everything yourself, or counsel your client to do the dirty work. There are plenty of experts out there who can consult with you and your client at the beginning of a case for a few hours. By initially working with an eDiscovery expert your learning curve will be drastically improved. These few hours will pay dividends and save you and your clients vast amounts of potentially lost money from unnecessary attorney time, outsourced expenses, duplicated efforts, lack of eDiscovery strategy and potential sanctions. These guys have helped hundreds, if not thousands of attorneys. They’ve seen practically everything. Eventually, you’ll get the hang of it and will be able to more easily guide your client through the considerations and challenges associated with electronic discovery.
Misconception #2: My clients would not even listen to me on this eDiscovery stuff.
Ok, so this is a very common feeling. Clients tend to want to locate their own stuff themselves. The problem with this is that they don’t realize all the potential land mines involved. Preservation needs to be noticed and followed up, and the search for responsive data under any such order must be thorough and uncompromising. The data cannot just be copied, with the attendant changes in metadata. Every action must be logged.
Then there’s cost: If your client keeps piece-mealing stuff over for review it becomes extremely difficult to estimate your billable time. This often leads to a client not understanding why their attorney billed them for so many hours and the billing attorney having to write off a lot of time just to keep the client happy.
An important concept always to keep in mind is that you just want to get your client’s original data once. If you can make a sound copy of all their potentially relevant data then you’ll have a strong sense of what is in the universe, how to cull it down and more accurately set expectations on how much in legal fees will most likely be spent throughout the discovery process. Not only does this help you to ensure that your time is more profitable, it will also help to protect you and your client from potential sanctions or lost opportunities owing to lost data.
By counseling the client to collect all potentially responsive evidence, the attorney will be more in the driver’s seat throughout the discovery process. The fewer surprises the better.
Misconception #3: Neither the attorney nor the client has the software or resources to deal with all the electronic data. This will make eDiscovery expensive.
If your firm has not updated its eDiscovery software lately, most likely it has outdated review software in-house, or is paying monthly fees for hosted software which, if you’re not careful, can turn into a major expense. Typically only the larger firms have the resources to invest in the latest software for their datacenter and have it make financial sense. This is one of the factors that have caused a divide between the eDiscovery haves and have-nots. This divide can foster a David vs Goliath mentality throughout a matter, and often put the smaller to mid-size firms at a major disadvantage: These Goliaths have the ability to bury their opposing parties by creating productions in volume and format, such as PDF, to where the data are unsearchable and unmanageable. With that said, an appropriate eDiscovery support consulting company can assist. Its software and hardware costs are leveraged over a much greater number of users than even most large firms, and can provide, in most cases, an additional level of comfort to client and attorney.
You can turn the tide. Your eDiscovery can operate leaner, smarter and more effectively. This is achieved by working with an eDiscovery expert and software provider who work as part of your team. Learn eDiscovery tricks and best practices from their breadth of experience: have a technical expert at the table for the Rule 26(f) meet and confer and specify the format of production; cull data for duplicates, date ranges and document types; study up on tools that find phrases or documents like those you just found relevant. Each case has unique circumstances. Find the correct match of the software needed and only pay for what you need. A full service litigation and eDiscovery support company will have services that include:
- 26(f) consulting
- Early case assessment tools
- Forensic collection and preservation
- Forensic analysis, triage, reporting and expert testimony
- eDiscovery processing and consulting
- Hosted document review
- Document production
- Document scanning, coding, OCR and conversion
- Trial presentation
The cost vs. benefit of retaining an eDiscovery professional should be a point of consideration by every attorney and claims handler for every potential claim matter. Money spent on the front end can garner huge savings on the back end in time, productivity, anxiety, and expense. Keep in mind that, in most regulated industries, records retention requirements already exist. Some consideration, outside the pressures of preservation letters, litigation holds, and pending litigation, as to where and how such information is stored, preserved, and retrieved, can also pay great dividends.
By overcoming these and other common misconceptions, you will be back in the driver’s seat, like you used to be back in the day before eDiscovery came into our lives. Learn from an eDiscovery expert, be proactive, maintain the lines of meaningful and focused communication, and take advantage of some of the latest and greatest tools. In our presentation, we will discuss these matters and more, in greater detail, with our suggestions for best practices.