The practice of exchanging discovery in federal litigation has ballooned to its own cottage industry within the practice of law. Many law firms tout expertise in the practice “Electronic Discovery Law.” Heady conferences convene to discuss the intricacies of how parties are to find their way through the labyrinths of software and security systems that protect the information of their adversaries. To many lawyers, the language of this area is akin to Hellenic Greek (active data, archival data, legacy data, Zublake steps, etc.). Many might be tempted to shrug off the detail and resort to the tried and true methods of faxing or hand delivering reams of unsorted papers as a discovery response. There is a path forward, though, for every lawyer, regardless of the robustness of your IT department, if you even have that kind of resource at your disposal.
For small to mid-sized law firms that do not house internal IT departments facile enough to get involved in processing an electronic document production, discovery becomes one of the biggest drags and cost centers of a case. There are some practices that can be incorporated early in the litigation that can get the information from the source and get it where it needs to go.
- Conduct a Client Conference- Before suit is filed, if you are the Plaintiff, and at the first caucus with the client after service of a Complaint, have a frank conversation about the 5 W’s, in this context: (1) what kind of information will be needed for your claims/defenses; (2) where is that information stored/accessible; (3) how is that information stored/accessible; (4) who are the information centers; and (5) when will you need to be digging into the details. Once you have done all of this, memorialize what you need in a proper Litigation Hold Letter. (More on that in a subsequent newsletter)
- Talk to the People who have their hands on the information: Once you know the who, what, when, where, and how, talk to the people that you will need to work with to get the information you need. Build relationships, build trust, put dates on calendars, and agree to work together for the purpose of the case. You need buy-in from your client if you are going to expect assistance with this part of the discovery process.
- Get a contact in-house who is not a lawyer: You do not necessarily need to work with the high-level members of your client’s legal team for this task, and, in many cases, a paralegal, an executive assistant, and an IT person can be your best source for navigating process and procedures.
- Identify protections: Early on, it will help to identify the basis for any privileges and protections you anticipate will apply to documents your opponent will be asking for. Sometimes, it is possible to work with opposing counsel to identify a particular date(s) for certain attorney-client or work product privileges to make a clean stop for document productions.
- Protective Orders: Most jurisdictions have Form Orders that counsel can file jointly requesting that the Court bless an agreement as to how the parties are going to treat confidential information. Negotiate this early and get it filed so that once you begin considering productions and depositions you can be prepared to raise confidentiality where it applies.
- Make a plan to exchange information in a manner that works for both sides: Decide how you are going to share documents between the parties while maintaining security of the documents during the litigation- particularly where documents are going to be marked “Confidential” pursuant to a stipulated order. Discuss different methods of using electronic portals, how those will be accessed, and how documents will be kept secure.
- Be candid about what you are searching for: Generally, a strong litigation strategy and position is not compromised by candid discussions with opposing counsel about the information you are looking for from particular witnesses and within particular documents or information centers. In fact, that kind of early tone in the litigation can build rapport that can cut off discovery disputes that drive up the cost for your client. Document those discussions in memoranda to your file in the event scope of discovery ever becomes an issue.
- Instructions Matter: Particularly when dealing with Electronically Stored Information, the instructions given to the party responding to a document request matters. If the instructions do not tell you explicitly how to produce the documents or the ESI, then produce them in a manner that is compliant with the Federal Rules and discuss how you will be doing that with opposing counsel. For many cases, the meta-data, for example, is not going to be an important part of the discovery and so discussions about that kind of ESI are critical to reign in the cost and complexity of your discovery response.
- Maintain Open Dialogue with your Client through the process: The discovery process will be hindered if your client is not on-board with your plans and procedures for completing your tasks during discovery. Remember that they are running a business, managing an agency, etc., not concerned with the intricacies of compliance with Fed. R. Civ. P. 26, 34, 37, the list goes on. “Commenting on the importance of speaking clearly and listening closely, Philip Roth memorably quipped, ‘The English language is a form of communication! . . . Words aren’t only bombs and bullets — no, they’re little gifts, containing meanings!’ What is true in love is equally true at law: Lawyers and their clients need to communicate clearly and effectively with one another to ensure that litigation proceeds efficiently. When communications between counsel and client breaks down, conversation becomes ‘just crossfire,’ and there are usually casualties.” — Judge Shira A. Scheindlin quoting Philip Roth, Portnoy’s Complaint, in Zubulake V, 229 F.R.D. 422, 424 (S.D.N.Y. 2004).
- Keep your eye on the prize: Discovery is just that, a search for the facts and theories that will be pursued during the litigation. Resist the temptation to lose sight of the forest for the trees. Pay attention to detail, but when faced with a dispute about a production that involves ESI, stay focused on what you need and who you need, some other information may be nice but not necessary and not worth the cost and time.