The adversarial nature of the United States legal system is not about cooperation and playing nice. In law school, lawyers are trained to best their opposition by (nearly) any means possible.
But in eDiscovery, the updated Federal Rules of Civil Procedure and emerging case law allow discovery to become a cooperative process. If you know how to make the rules work for you, they can actually level the playing field for a small firm or solo attorney.
Negotiating eDiscovery for small firms.
Discovery rules and pretrial procedures are designed to remove the risk of surprises at trial and provide a more fair contest “by requiring disclosure of all relevant information.” However, discovery of all possible relevant information in our electronic world is not always possible.
If parties try to collect and review all available information, the party with more money to spend will likely control the process. That is why small and solo law firms must work hard to keep the focus as narrow as possible.
To start, every small or solo law firm attorney should familiarize themselves with the Sedona Conference Cooperation Proclamation. The document promotes a less adversarial approach to discovery that’s not only practical, but has also been endorsed by judges across the country.
Begin any discovery process by meeting with opposing counsel and work towards a consensus about the scope of preservation for both sides. To avoid conflict and confusion, these negotiations should be carefully documented. Topics of particular interest include the development of search and retrieval methods and the disclosure of data sources.
Ignoring these issues may mean missing the best chance to find data within a reasonable timeframe and cost.
Here are our 6 tips for using the rules of discovery to your advantage:
⊛ Hammer out a phased eDiscovery plan.
Agree to limit initial collection efforts to the key custodians. Then, if initial efforts do not get what is needed, 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 e-discovery data.
⊛ Choose the form of eDiscovery production.
When in doubt, always ask for files in their native format to retain all associated information and metadata. Native files can be converted to TIFF or PDFs later for Bates stamping, redaction, and production.
⊛ Limit the search terms.
Too many search terms, or terms that are too broad, will produce too much ESI to process and review. In addition, test the “searches” before the meet and confer. Poorly worded search terms and strings will not yield useful results later on.
⊛ Plan sampling and metrics.
Plan ahead to test the success of your search for ESI. For large document sets, that means using periodic sampling to ensure the search is producing results. For more information, consult the TREC Legal Track for the latest in search procedures.
⊛ Get it in writing.
It should go without saying, but any agreements should be confirmed in writing. Cooperation is a great ideal, but opposing counsel might not always be on board. Documentation can head off stall tactics, procedural delays, and spoliations claims later on.
Small and solo lawyers are learning some hard lessons about the benefits and burdens of obtaining electronic evidence in litigation. The bottom line is that small cases cannot be litigated with uncapped eDiscovery costs.
Unfortunately, attorneys litigating a $50,000 case are often confronted with cost estimates of $500,000 for discovery services. However, by working within the new Federal Rules of Civil Procedure and effectively deploying eDiscovery technology, any attorney should be able to effectively litigate any matter and keep costs under control.
Grab the free eDiscovery Software Buyer’s Guide for Small Law Firms for a detailed look at all the rules and case law small firm attorneys need to know, and a philosophy that allows smart attorneys to secure a just decision in the face of the digital evidence deluge.