Collaboration and Communication: A Tactical Approach to Controlling eDiscovery

As most litigation today hinges on electronic data, electronic data discovery (e-discovery) is fast becoming a significant portion of the total cost involved in litigation. This article explores the e-discovery process from pre-trial conferences to document review and focuses on how close collaboration and open communication between litigation teams and their vendors can bring about cost-effective and tailor-made solutions.

Electronically Stored Information: Changes in the Law

Problems arising from inconsistencies and confusion regarding the growing magnitude of electronically stored information (ESI) in discovery and litigation are rampant among the legal community. As such, the forthcoming changes to the Federal Rules of Civil Procedure (FRCP), scheduled to take effect in December, 2006, are aimed at promoting and requiring attorneys to be knowledgeable and conversant with ESI and the e-discovery process in general. These changes reflect the growing impact and influence of technology on litigation and the law. The Amendments to the FRCP as they pertain to e-discovery primarily focus on five particular areas:

  • Seeking to adapt FRCP Rules 33, 34 and 45 to e-discovery;
  • Providing procedures for asserting privilege after an inadvertent production of privileged information;
  • Limiting the discovery of non-reasonably accessible electronic information; and
  • Sanctioning against parties for spoliation of electronically stored information.

Controlling and managing e-discovery projects are methodical processes that occur prior to the definition phase of pre-trial conferences. The new rules will require parties to organize meet and confer sessions in an effort to solidify the e-discovery issues involved. Thus, it is imperative for attorneys and vendors alike to understand the scope of the matter at issue, and the "who, what, when and where" of potential ESI. A diligent and collaborative approach from inception helps identify and facilitate effective processes and methods.

The Technological Lifecycle Challenge

Working with ESI presents many challenges. Developments in hardware, software and computer technology continuously change the nature of ESI. As technology companies evolve, so do their software applications, often dramatically. Take, for example, companies who own portions of an early "standard" email platform, Netscape ServerT. This presents potential complications when the need arises for processing these email messages because no one truly supports earlier versions of this email platform.

Moreover, in the communications industry, technology has quickly evolved from email and calendar items to instant messages, net meetings, web conferences, smart board technologies, web-based email programs and voice mail, to name just a few. In addition to the commonly used productivity software applications, data generated by specialized software applications, such as CAD drawings, semiconductor circuit designs, oil and gas reservoir models and simulations, etc., may be critical components in discovery and thus, extremely relevant during litigation. As such, e-discovery processing must stay abreast of frequent and often disruptive innovations that redefine the standards. By leveraging the technical expertise of processing vendors, attorneys can avoid unpleasant surprises during discovery and focus on the legal aspects of the case.

Managing Costs

As previously identified, the cost of e-discovery is rising primarily because of the explosion in the amount of ESI for processing. As storage becomes less costly, the amount of ESI generated and preserved in the corporate workplace has drastically increased. ESI is archived in an alphabet soup of formats (i.e., zip, pst, bzip2, tar, gzip, rar, 7zip, pkzip, etc.) and stored in a variety of current and extinct storage hardware (i.e., floppies, zip drives, tapes, CDs, DVDs, hard drives, flash memories, etc.). Costs can be managed by working with opposing counsels to develop specified production requests. These requests can be implemented using complex searches, filtering and de-duping strategies.

Over the last few years, significant improvements in e-discovery processing and review technology have expedited review and favorably reduced costs. It is important for litigation teams to fully understand the availability of options. New concept-based technologies that identify and show relationship patterns within relevant data or near-duplicate searches, coupled with bulk tagging capabilities, can significantly speed the review process. Reviewing and producing data natively, too, is beneficial in cost management.

Often in e-discovery projects, vendors simply follow the specific processing instructions provided by their clients. However, a solution-oriented approach that leverages the vendor's technical expertise can result in significant cost savings. Communication is key; thus, it is important that vendors work closely with attorneys to understand the case, ask questions and suggest appropriate methodologies before processing data, not only to reduce costs, but also to avoid e-discovery pitfalls like those highlighted in Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., No. CA 03-5045, 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005).

Flexible Strategy:

Furthermore, it is important that e-discovery solutions not disrupt the processes adopted by legal teams. Vendors must realize that usability in e-discovery is as important as legal compliance and accuracy in processing. Flexible review and processing tools that can adapt to legal teams' workflows significantly reduce disruptions and costs. Flexibility can mean adding something as simple as capability to print documents locally, incorporating advanced search heuristics, or as complex as being able to streamline e-discovery into first level document review services. The primary objective for e-discovery processing is to reduce the amount of ESI into a relevant data set and ultimately facilitate first level document review for discovery deadlines. As such, a vendor should recognize this necessity and effectively strategize their services with that in mind.

At the end of the day, customized e-discovery solutions and responsive vendors can help legal teams advantageously control costs. Tailor-made solutions that incorporate the best practices will simplify first level document review and allow attorneys to focus on their core expertise.

Courtesy of Mike Dolan and Priya Keshav of the Tusker Group.