eDiscovery was once the sole concern of Big Law and large-scale litigation, but we’re long past the point when any lawyer can ignore the issue.
Small and solo lawyers are learning some hard lessons about the benefits and burdens of obtaining electronic evidence in litigation, especially given the exploding volumes of social media content. But the fact is, small firms can not only effectively conduct eDiscovery investigations, but these firms are often at an advantage when competing with big firms.
Without legacy software and processes in place, small and solo lawyers can often adapt more quickly to the challenges of social media and eDiscovery. But the issue is not just freedom from expensive legacy software- the rules actually provide small firms with ability to compete on the same footing as any BigLaw competitor. For large law firms, the only real advantage is size and resources.
But ever since eDiscovery first became an issue in the early 2000’s, courts have been slowly hammering away at proportionality rules and cost sharing tests that level the playing field for small firms. If a case may only result in a $50,000 judgement, paying $30,000 for eDiscovery services is out of the question, and smart lawyers will use the rules to limit discovery to only what is necessary.
Make the Rules Work for You
To start, every small or solo law firm attorney should familiarize themselves with the Sedona Conference’s Cooperation Proclamation. The document promotes a less adversarial approach to discovery that’s not only practical, but has been endorsed by judges across the country.
The actual negotiation will begin with what is known as a 26(f) Conference, which happens before any discovery can occur. The courts have made it clear these conferences should happen as early as possible and parties should agree on foundational principles like the forms of production. If parties can’t agree within two weeks, they face the judge for what is known as the Rule 16 conference. Once an actual discovery requests is issued, the responding party may object, under Rule 26(c) and 37(a).
Rule 34(b) allows the requesting party to decide how it wants information is to be produced and lets the responding party object if impractical. Note that if the requesting party fails to specify the form for producing data, the producing party has the option to either produce the information in a form in which it is ordinarily maintained, or in an electronically searchable form.
Courts have rebuked parties that produce data in printed or other non-native formats. (When in doubt, get the native format. It retains potentially useful metadata and is usually easier to access.) These rules are in place specifically to help parties establish fair processes for discovery. Small firms that know how to use these rules can easily compete with more well-funded adversaries.
In particular, during the initial conference:
- Hammer out a phased discovery plan— Agree to limit initial collection efforts to the key custodians so that if initial efforts do not get what is needed, then a new, expanded phase of discovery can begin. This limits the scope of discovery without handcuffing parties later.
- Limit the number of custodians — Not everyone involved in a given case will have a smoking gun email. Each custodian removed from the list can save time and expense in collecting data.
- Limit the search terms — Too many search terms or terms that are too broad will produce too much ESI to process and review.
- Get it in writing — It should go without saying, but any agreements should be confirmed in writing.
Make Technology Work for You
In the early days of eDiscovery, parties would try to steamroll opposing counsel by sending them as many files for review as possible close to the start of litigation. The idea, borrowed from the days of discovery of paper documents, was to obscure the facts with a blizzard of data no one could possibly review in a short time. Today, a document dump actually puts the receiving party at an advantage, since they can now review huge volumes of data with the raw computing power available in the cloud.
The cloud is the only solution for eDiscovery that can meet the growing demand for storage capacity. Many firms have invested millions of dollars in hardware and software to manage eDiscovery in recent years. But a small firm with no investment in this technology has much more flexibility and is more capable to handle any sized eDiscovery matter that may arise.
Cloud storage solutions dynamically allocate resources so firms have exactly the amount of data storage needed to manage gigabytes, or even terabytes, of data. And the money saved in hardware and software is much better deployed in actual eDiscovery services.
Given the emerging rules, case law, and cloud technology, a small firm lawyer should not only be able to compete with the the largest law firms in the land, but more easily win the day for their clients as well.