Since the Federal Rules of Civil Procedure were amended at the end of 2006 to specifically embrace electronic discovery, parties to litigation and their counsel have been scrambling to figure out the best and most economical ways to comply with their obligations in this area. And while the rules were amended with the goal of reducing litigation expense, ironically electronic discovery costs actually may have increased as a consequence.
For example, while the amended rules are suppose to provide early structure, uniformity and predictability, parties now within the first 120 days of a case must evaluate whether their counsel and their IT teams where they stand in terms of the electronic discovery. And this undertaking can be fairly enormous. The scope of potential electronic discovery is practically limitless. Relevant data may be located on live on networks or on various servers. It also can be found on hard drives, laptops, PDAs, backup tapes and even voicemail messages, and instant messages. And ascertaining the logistics of eDiscovery a party may intend to produce in a case may help determine the electronic discovery to demand from the opposing party. Clearly, a party should not expect to demand a category of electronic discovery that it is not willing to produce.
Recent history in cases is showing that electronic discovery can be very burdensome and expensive. At times, and perhaps as a result, cases are resolved before the parties, counsel and IT vendors have invested time, effort and expense of carrying out electronic discovery search retrieval and production procedures. By telescoping these processes early in cases by way of the federal amendments, opposing sides in a case have no choice but to move forward with electronic discovery unless a settlement can be achieved relatively immediately.
There have been battles in cases over the appropriate reach of electronic discovery. Courts are called upon to weigh the potential probative value of the information requested versus the burden and expense of production. At times, where appropriate, there can be cost-shifting, such that the party demanding production has to pay the freight of electronic discovery.
Given the broad scope of electronic discovery in some cases, the amended federal rules do allow parties to retrieve inadvertently produced privileged information. The vast amount of data produced in some instances does not allow for perfection in screening out all privileged information in advance of production. Parties need to be very careful not to allow for the deletion or destruction of relevant data once they know of the actuality or potentiality of litigation.
While parties may not be sanctioned when electronic information has been deleted as a result of the good faith, normal data retention policies, once a lawsuit is on the horizon, a litigation hold must be put in place to preserve relevant data. Not surprisingly, electronic discovery has become a growth industry in its own right. Electronic discovery vendors constantly are coming out of the woodwork offering all sorts of “solutions.”
Parties need to work actively with their counsel in selecting the best electronic discovery vendors and technology for their cases. Counsel also need to try to reach across the table to establish protocols and agreements with opposing counsel that will help define electronic discovery parameters that are mutually acceptable. For example, counsel can agree on search terms, custodians as to whose records will be searched, and locations to be searched. With proper thought and planning, electronic discovery can become more manageable.