Electronically stored information has dramatically increased the burdens of discovery. The cost of document retention, collection, review, and production can make even relatively high-stakes disputes not worth litigating. And e-discovery mistakes can carry serious consequences, including adverse inferences, sanctions, and waiver.
Electronic discovery can, and must, be managed. Here are some tips that will help you do that. (This article cites the Federal Rules of Civil Procedure. California is formulating e-discovery rules that will likely mirror the federal approach.)
BE PREPARED TO AGREE TO LIMITS
FRCP 26(f)(3)(C) requires lawyers to be prepared to discuss "any issues" related to e-discovery at the initial meet-and-confer. You must understand the sources of relevant documents, the likely custodians, and the form of production. You must also have already implemented an effective "litigation hold" to ensure that documents are preserved.
Limiting the scope of discovery is the most effective way to control e-discovery costs. Communicating early with your adversary also helps. By identifying categories of documents and custodians, you can manage the opposing side's expectations and learn which documents might be important to its case. If your adversary will not agree to reasonable limits, you may consider taking the issue to court.
Depending on the dispute, some materials may be collected and simply handed over without review (assuming an appropriate protective order is in place). You can review your documents after production, as necessary.
You might even consider prereview production of documents that may include privileged materials. The parties can enter into a "clawback agreement" and stipulate that inadvertent production of privileged documents does not waive an applicable privilege. Rule 26(b)(5)(B) arguably approves such arrangements, and courts generally recognize their validity. But be careful: Producing potentially privileged documents without review is not always appropriate. Indeed, it's hard to unring the bell. Privileged documents may contain information your adversary shouldn't see under any circumstances; also, some judges might consider clawback arrangements unacceptable and find that a privilege has been waived.
Google built a multibillion-dollar empire around keyword searching. You can save your clients money by leveraging keyword searching to trim production and review costs.
There are many ways keyword searching can streamline discovery. Depending on your clients' information systems, you might use keywords to cull relevant documents for retention. You might agree with your opponent to use keywords; each side could propose keywords to define what will be produced. You could also use keywords to conduct privilege reviews, e.g., by looking for attorneys' names and email addresses. And you might search your opponent's production for relevant keywords and forego a page-by-page review.
You should exercise your best judgment. Work with your opponent to develop a keyword-searching approach. Trial-and-error sampling is useful, given that keywords may be under- or over-inclusive.
CONSIDER COST SHIFTING
The most satisfying way to defray costs is to force your adversary to pay them. The Federal Rules are helpful in this regard. Rule 26(b)(2)(B) reads: "A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost." [Emphasis added.] Judges often fail to apply the cost/benefit analysis embodied in the rule, simply asking whether information is "inaccessible." You should convince the court to conduct the proper cost/benefit analysis-the Committee Notes following the rule are helpful in this regard.
If your adversary demands discovery that is not reasonably accessible because of undue burden or expense, consider a cost-shifting motion under Rule 26(c). Be specific; highlight steps you've taken to produce relevant information and determine how expensive the additional discovery will be relative to the amount in controversy. Your adversary must show good cause why the discovery is warranted. And even if your motion is denied, you can renew the motion if, in fact, the additional discovery is not productive.
Much of this discussion relates to defense counsel, as discovery burdens tend to fall more heavily on defendants' shoulders. But there are powerful incentives for plaintiffs to agree to limitations. A well-tailored production reduces discovery burdens on all parties. Moreover, either side's attempt to use e-discovery for tactical purposes could backfire, risking the loss of credibility with the court.
Michael T. Maletic is an associate in the General Litigation/Media Group at Weil, Gotshal & Manges in Redwood Shores, and a member of the firm's e-discovery task force.