With the growing prevalence of e-discovery issues and cases in both state and federal courts, lawyers and firms have adapted to include specialists who handle many of the technical issues. Newer attorneys who attended law school in the last five to ten years arrive accustomed to accounting for, or at least identifying e-discovery concerns. Courts have been updating their rules and imposing sanctions for attorneys who fail to appreciate and address the importance of e-discovery. All of this comes at a cost which is routinely passed on to clients as a relatively new and expensive cost of litigation. Litigators appreciate how these costs are necessary as part of our due diligence and ethical obligations. However, very little is published on key talking points for the proverbial “billing” attorney who has to talk to the client and explain these costs in terms that make sense, and convince the client to authorize the costs to avoid future adverse consequences. A few straight forward principles will help an attorney navigate these difficult conversations.
First, talk in terms of what is being accomplished, not how it is being accomplished. E-discovery is often most easily understood when compared to traditional discovery. For instance, in an employment discrimination suit, a plaintiff who files a lawsuit cannot discard a diary where they recorded their daily experiences and feelings in dealing with their supervisor — the same would be true for an electronic version of a “diary.” This could be in the form of social media, text messages, calendars or other electronic means. Everyone understands the need to preserve and present relevant information and e-discovery is really only another means of doing so.
Second, be prepared to discuss and highlight costs avoided by “doing-it-right-the-first-time.” The typical pattern for many in e-discovery cases is to seek the least expensive, easiest solution to try first to minimize out of pocket expenses. This is a short sighted solution, and one that could have significant adverse consequences as it may result in the loss of key information or requiring staff to recollect and process information that was already processed once. Many experts agree that sticking to a checklist is the safest way to traverse the e-discovery challenges. For an example see: www.ober.com/publications/3300-electronic-discovery-preparedness-checklist
Third, be able to highlight some of the things you have done or are doing to minimize the costs. This could include the use of a vendor or in-house capabilities, whichever is less expensive in the particular instance, to show the client you are looking out for their bottom line, not just the lawyer’s convenience. Other facts to point out are useful agreements with the opposing counsel like custodian numbers, limits on privilege logs, and F.R.E 502(d) order. Explaining these measures in a way that translates to costs avoided will help show that lawyers are not without some ability to effect the process.
Fourth, discuss some of the potential information you may have access to that we would not have had in the past. Use specific examples like data concerning activity that would otherwise be hidden on paper discovery. For instance, being able to show when a person was using a computer or mobile devise, or where and when a particular picture was taken, based solely on data embedded within the file, may help change the outlook of a case and the relative negotiating positions of the parties. This may be of significant advantage to a client, or may help them realize that early, pre-discovery settlement is in their interest.
Lastly, be ready to talk about the adverse consequences from failing to meet the obligations required by the rules. Highlight a few relevant cases where parties either failed to preserve data or modified it in a way that corrupted the evidentiary value. There are a number of instances where both the attorneys and the clients were sanctioned, or where adverse inferences were made by the court. Understanding how negative some consequences can be where parties fail to take the proper steps with regard to e-discovery will help give clients an accurate picture of the risks before making the decision on whether to authorize recommended e-discovery expenses.
Being the go-between with a client can be more difficult in the ever-changing world of e-discovery. However, have a few basic concepts to communicate regarding the benefits and risks will help make these conversations more productive and result in a more satisfied client.