E-Discovery: A Primer for Litigators
If you'd like to improve your knowledge of e-discovery, here's a good starting point.
I’ve been to a number of e-discovery CLEs where they say something like: “The iterative process of phased custodian production encourages efficiency and cooperation between counsel.” Half the room is frantically writing that down so they can go home and Google it and the other half already knows that and they’re just there to network. So, if you are in the half that would have written that down, if you would like to improve your knowledge of e-discovery, if you are afraid of ethics opinions regarding e-discovery and have been trying to avoid it, this article is for you.
Why Do We Need This?
I’m not going to tell you that e-discovery is a huge tidal wave about to crash on your heads, but you probably have noticed an increase in data that is stored electronically as opposed to in filing cabinets. Accordingly, we have seen an increase in discovery requests for this electronically stored information. E-discovery rules are simply the rules that supplement the regular discovery rules and pertain to how to handle electronic data. We need supplemental rules because e-discovery typically involves large data sets (a million pages is not uncommon).
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E-discovery involves increased costs associated with reviewing electronically stored data, procedures for gathering and preserving the integrity of that data, and rules limiting what you can and cannot ask for. Since these millions of pages of documents need to be reviewed for privilege, the chances of some documents slipping through the cracks are pretty good, so there are rules governing how we handle that as well. Electronic files can be destroyed a lot more easily than paper documents, whether intentionally or unintentionally. It’s very rare that you walk into your filing cabinet room and turn on the light switch and all of the documents in the room just disappear. So, we have rules regarding the “accidental” destruction of documents as well.
So, do you need to know the rules of e-discovery because you are going to be sanctioned if you don’t learn them? Probably not. Why did you learn how to propound and respond to discovery in the first place? There certainly are some ethical landmines in there with time frames and preserving proper objections, but most of all, we want to be able to turn the screw on the opposing party. I once got a request for production for all of my corporate client’s computers. I knew immediately that I was not going to produce them and the rules that I was going to cite in my opposition to the motion to compel. Likewise, if I am propounding discovery, I know how to phrase my requests such that the other side will either have to comply or we’ll be close enough that there is a danger they’d lose a motion to compel. I’m not wasting time with fruitless, expensive requests. I know what I want, how to get it, and most importantly, why I’m entitled to it.
Where to Start?
There are a couple of great guidelines for beginners of e-discovery. First, you’ll want to familiarize yourself with some of the basic concepts. Judges use a document called “Managing Discovery of Electronic Information: A Pocket Guide for Judges,” co-authored by Barbara Rothstein, Ronald Hedges, and Elizabeth Wiggins:
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Whether you are in state or federal court, this is a great guide because the state courts often borrow opinions from the federal courts because federal courts have such a head start on this issue because of all of the multi-district litigation that is e-discovery heavy. This handbook is a 15,000-word guide on the basics published by the federal judiciary.
Now That You Know What’s What, How to Meet and Confer
The Northern District of California has a terrific set of guidelines for walking through e-discovery disputes on their page here. In particular, they have published a two-page checklist:
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And they have published a three-page set of guidelines regarding the handling of e-discovery between counsel.
After reviewing these, you might not be an expert on e-discovery, but you will have a list of categories of things to research further or to bring up with your e-discovery consultant.
How to Research Further
Kelly Twigger from ESI Attorneys has developed an online legal research tool that is something like the Westlaw for e-discovery called EDiscovery Assistant. It has links to case law that you can search by category and filter by jurisdiction. So, with a few clicks, you can review all of the cases in your district that address the issue of proportionality or sanctions. There are links to rules, guides, checklists, and everything else you need to research and engage in best practices.
http://www.ediscoveryassistant.com/features/
When you are dealing with tens of thousands or hundreds of thousands or millions of documents, any tips on saving time and money can go a long way, so it literally pays to do your research.
Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. He serves as a member of the Board of Directors of San Diego’s plaintiffs’ trial lawyers association, Consumer Attorneys of San Diego. He is also the Education Chair and Executive Committee member of the State Bar of California’s Law Practice Management and Technologysection. He is a member of the Advisory Council and instructor at UCSD’s Litigation Technology Management program. His opinions are his own. Follow him on Twitterhere or on Facebook here, or contact him by email at jeff@trial.technology.
