While the 2006 amendments to the Federal Rules of Civil Procedure governing electronically stored information (ESI) have been in place for a little more than four years, navigating the unknown technology and worst-case scenario court rulings can still be unsettling. What are defense attorneys to do? They should do what they have always done -- know their client, know their case, and be prepared.
Prior to 2006, the lack of clear requirements made negotiating sessions on ESI notably more difficult. Today, by contrast, legal counsel on both sides are required by the federal rules to meet and confer in the beginning stages of the litigation about (1) what relevant ESI is available and accessible; (2) how ESI will be collected and produced; and (3) the format in which ESI will be produced.
It is not surprising that many still think of e-discovery as an unwelcome consequence of the digital age -- a big, bad monster that should be driven back to its cave. However, while it might sound counterintuitive, attorneys who are willing to focus on the opportunity to define certain aspects of their case and establish open lines of communication with opposing counsel early on should view e-discovery as a net positive. The federal rules pertaining to ESI, while imperfect, can be wielded as an effective weapon against over-reaching plaintiffs. If prepared, attorneys are able to strategize in the early stages of the litigation, develop a well-rounded discovery plan, and force plaintiff's counsel to focus on the merits and context of the case at hand.
Preparation is Key
E-discovery consultants offer online primers with titles such as "How to Write the Perfect Preservation Letter" or "Plaintiff's Guide to e- Discovery." Some of this advice might be valid. But when it comes to specific demands, the reality is that just because the plaintiff asks for something does not mean the rules require the defense to comply. On the contrary, specifics about the litigation, such as what is at issue, the relevant time frame, and limitations of the client's IT infrastructure, determine what is reasonable and relevant to the case. Cognizant of this, the defense can respond to plaintiff requests accordingly. Understanding the client's ESI environment and infrastructure will allow for a smooth navigation through the meet and confer process, the creation of a meaningful discovery plan, and an effectively managed project through all phases of discovery, even in highly complex cases.
Reasonable and Relevant
I recently received an e-discovery form letter specifying that my client preserve and catalog all computers accessible by the client's board of directors and seize the home computers of employees who telecommute. Similarly, plaintiffs in another case requested search parameters from every conceivable database that might be used in a modern corporation. While these types of requests can easily evoke emotions of fear and loathing, keep in mind that they generally amount to nothing more than clumsy attempts to divert the issues.
When presented with these types of demands, allow the structure now provided by the rules to guide a measured response. Those who thoroughly understand both their client and the specifics of the case can force plaintiffs to agree to clear parameters on ESI. Why? Because the rules themselves stipulate that e-discovery should be dictated by what is "reasonable" and "relevant" to the case. To a prepared attorney, form letters demanding irrelevant information suddenly appear to be what they really are -- empty threats. Upon receiving such a request, simply respond by stating that the request fails to pertain to the facts of the case.
This approach, which amounts to turning the unknown into a strategic ally and opportunity to set parameters and avoid diversions, illustrates the advantages of embracing e-discovery rather than resisting it. After all, ESI is clearly here to stay and will continue to evolve as quickly as technology.
By ceasing to regard ESI as an anomaly and instead focusing on how it fits into the context of the cases we defend and clients' overall strategies, lawyers become more effective and provide a higher level of service.