As a non-attorney in a field dominated by lawyers, I have had to work extra hard to have a voice in the legal industry. An early focus on discovery rules and principles that was then adapted to the “new” field of eDiscovery has provided me with a level of expertise that allows me to speak with some level of experience and offer my clients useful information and observation. The eDiscovery process is complicated and has undergone some recent modifications with the new Federal Rules of Civil Procedure (FRCP) rules adopted in December of 2015.
Before I offer my 2 cents on this topic, let me note that becoming an expert on eDiscovery rules is not a sexy part of the law. Yet it is important that lawyers either become well versed in the rules or defer to someone that is so that they don’t get bogged down in the procedural issues that these rules are meant to help streamline. When followed properly, they allow lawyers to more quickly get to the law and the facts of the case, which lead to the actual litigation of the matter on your client’s behalf. So,based on my involvement and understanding of the FRCP, the following is some general advice that I would offer to help eDiscovery practitioners.
Practical Advice for eDiscovery
1. Don’t ask for too much information.
The first principle that is obvious but rarely followed due to the history of the adversarial roles of attorneys in litigation is, don’t ask for too much information. Old school law followed the credo; ask for everything, including the kitchen sink and the water that was in it. But that was then and this is now. Judges are no longer tolerating wide open fishing trips. Quite frankly, the costs to your clients are tremendous when law is practiced this way.
Even though the Rules of Discovery are broadly written, it should not be a license to ask for everything that you can think of. In fact, by limiting your first requests (while reserving the right to submit additional requests if needed) to what you really need, you become the “reasonable” party when your opposition tries to claim that your requests are overly broad. Note the heavy emphasis and liberal use of the term “reasonable or reasonableness” and “proportional” throughout the rules and understand what the courts are now looking for vs. what they used to allow. Following the elements in the claims and defenses in a case is a great roadmap to follow allowing you to conduct probing discovery. Linking each request to elements increases the likelihood that the judiciary will look favorably on your request if questioned by the opposition.
Many think that they are doing their job well and covering all the bases when they include adverbs such as “any”, “all”, “every”, “each” to cover every possible permutation and instance of a request. In fact, it often results in requests that are overly broad. This provides good grounds for your opposition to object and perhaps win the argument that your request is unreasonable or not proportional to the case.
2. Know exactly what you are requesting.
A related issue to, don’t ask for too much information, is to make sure that you know exactly what you are asking for and pay particular attention to the form in which you ask the information to be provided. It is not enough to say that you want the information in digital form vs. paper. You must work with the opposition during the Meet and Confer to make sure that the data will be provided in a format that you can readily use, based on the software that you plan to review the data in. There is a big difference between .PDF, single page tiff and multi-page tiff, and native files when attempting to quickly ingest information.
In addition, the data needs to be accompanied by full pathing information that traces the document back to its original source location, including Custodian name. Complete document Metadata is easy to ask for upfront, but if you find out you need it down the line, it is a costly nightmare to match Metadata to an existing data base. All of these “technical” issues can be addressed during the Meet and Confer by a team that should include your eDiscovery counsel, project managers and IT personnel. A little planning upfront will eliminate huge headaches later on.
3. Be a problem solver, not a problem creator.
The thing that judges dislike most is paying hall monitor for minor problems and personality differences. Most discovery disputes can and should be solved without the court’s intervention, even when opposing counsel seems impossible to work with effectively. It often requires hard work and lots of patience but it is worth the effort because either 1) you resolve the issue without bothering the court; or 2) you are the party that appears reasonable when the issue finally makes it to the judge for a ruling. You should think of the judge as the replay team of the NBA located in Newark, N.J. Use them sparingly but do use them when you need them. Judges are not afraid to get their hands dirty in resolving a true dispute; they just don’t want to be on anyone’s speed dial at the first sign of a disagreement.
Rule 1 of the FRCP discusses how Cooperation is going to be expected moving forward after December 2015 to a much greater degree than ever before. Cooperation over the collection and dissemination about factual matters is not viewed as a weakening of providing the best advocacy on behalf of client. The FRCP are supposed to be about the orderly exchange of required information and judges are no longer going to allow delays and motions for changes without a real argument to support them.
Meeting with initial opposition can usually be resolved when a series of letters, emails and requests for meetings to resolve issues are the courses of action instead of a series of yelling matches and nasty phone calls. And if that strategy doesn’t work, your motion to compel is much more likely to be awarded when you are deemed to be the more “reasonable” party.
4. Know the technology.
Today’s discovery really is all about eDiscovery. Evidence today is mostly found in some type of digital format, be it emails, databases, texts, tweets or other common format. It is located on a variety of different storage devices; from mainframes, to laptops, to smartphones, the cloud or other physical devices. eDiscovery is the backbone of all the evidence that you will gather and use during depositions or trial to prove your clients allegations.
While in most ways, electronic data is far easier to work with than paper files, the sheer volume of eDiscovery data requires more than a passing knowledge of eDiscovery platform software. Each attorney does not have to become an eDiscovery software expert, but you should recognize your limitations and put together a team of people that understand things like hash values, predictive coding, search strategies, and how to use analytics and database mining so that you leave no stone unturned during the document review. While there are some attorneys who wring their hands and talk about how lawyers are becoming obsolete in today’s computer world, you only become obsolete if you don’t embrace the new technologies and understand how they can improve your practice of law. Computers will never replace legal judgment and factual determination, they are merely tools that can be directed by a legal mind to help find the documents most likely to be of use, and do it very rapidly.
Increase your eDiscovery Knowledge
If currently you are not very literate regarding eDiscovery technology, there are a variety of ways that you can increase your knowledge and understanding without major investments of time and/or resources. These include:
- Utilize your own internal staff and take the time to meet with your technology staff or technology proficient attorneys on a regular basis to keep you apprised of new issues in the field.
- Attend an advanced course such as the Georgetown eDiscovery Academy, ABA, Michael Arkfeld’s eDiscovery Education Center, ACEDS, ILTA and other organizations.
- Attend vendor and law firm webinars which can be viewed from your desk without any major time or travel commitments.
- Read industry expert blogs who cover eDiscovery topics such as rules implementations, court rulings, eDiscovery procedures and other related topics.
Everyone does not need to be an expert, but it certainly helps to have some basic understanding of the field so that can determine when to bring experts to the table to make sure that eDiscovery will be properly handled. A basic knowledge of modern eDiscovery technology goes a long way.