In cases involving large amounts of electronically stored information (ESI), those of us at mid-sized or smaller firms may sometimes feel a little out-gunned when the requests for production and documents start flying. While David beat Goliath with just one stone, supposedly he had a little outside help from above. Presuming that you have used your allotment of divine intervention rooting your favorite sports team to victory, you may need a different strategy to slay your e-Discovery Goliath.
E-Discovery might seem at first something that only a large law firm would be truly good at. But the first thing to realize is that the playing field is not so uneven after all. Most of the same tools are available to firms of all sizes. The trick is to overcome your own perception that you have disadvantages belonging to a smaller firm, and then to capitalize on the distinct advantages.
It’s All in Your Head
Speaking of sports, there has been a mini-revolution in major sports as teams with limited resources are forced to learn to look at their own industry from different, nontraditional perspectives. If you are a baseball fan or have seen the movie Moneyball, then you are probably familiar with Billy Beane. Billy Beane became the general manager of a small-market major league baseball team, the Oakland A’s. Realizing that he had no chance to compete with the huge contracts paid by the teams in larger markets, Beane successfully used a new kind of statistical analysis to evaluate baseball players and to identify players that could be signed for bargain prices relative to their worth on the field. The methods used by Beane have become commonplace.
Similar principles can be applied to e-Discovery. The basic perception for many is that e-Discovery means mountains of electronic data, requiring a firm with big resources to handle big e-Discovery projects. You may have even encountered this misperception among prospective clients. But that is built upon a faulty assumption. Just as a small-market team can compete by deploying its resources in smart and efficient ways, a law firm that can leverage and deploy its e-Discovery assets in the most efficient manner will achieve the best results. The good news is that these e-Discovery tools and strategies are not proprietary.
Efficiency Comes Naturally
Approaches and best practices to e-Discovery are publically available. They constantly evolve, but the trend continues to increase efficiency. The skill in developing efficiency comes from recognizing overlooked advantages. A smaller firm does not have the luxury of getting mired in inconvenient, burdensome, or expensive discovery. As a result, our overall mindset is well suited to managing e-Discovery projects because rather than understanding the “e” in e-Discovery to mean “expensive” we know that it can mean “efficient.”
Don’t Sell Yourself Short
You do not want to hear that you do great work and that someone would have hired you for a certain matter (1) if only they had known that you did e-Discovery, or (2) if only they had known that you were “large enough” to handle e-Discovery. E-Discovery is, after all, just discovery. Get the word out that your firm can handle litigation even with a significant e-Discovery component by educating your colleagues about your firm’s capabilities and by incorporating it into your own elevator speech.
Dodge Document Dumps
So now your client has hired you to be a lean, mean e-Discovery machine, but how do you deliver on that when the other side has snowed you in with an avalanche of supposedly “responsive” files? Managing the document dump on the front end will lead to greater efficiency throughout the life of litigation.
One preemptive strike is to agree early on with the other side to a very limited scope in terms of dates, subjects, data types, data sources, document custodians, and production formats. The production format is especially important. It will guide your technology choices for processing and reviewing.
This is all easier said than done, certainly. As a firm with less fancy resources yours is the one with the most obvious incentives to narrow discovery. However, this winnowing saves all parties involved time and money. In most cases, even the deepest pocket on the other side does not want to throw money down an e-Discovery hole. The key is to make sure that the other party, not just the other counsel, hears and appreciates that message. Cooperating on e-Discovery will be in everyone’s best interest.
The obvious place to do this negotiation is during the Federal Rules of Civil Procedure Rule 26(f) “meet and confer” conference or the state counterpart of one. A collaborative approach can help parties settle the parameters of each party’s preservation and collection obligations, can help minimize e-Discovery costs, and hopefully will avoid future discovery disagreement. Federal Rule 26(f) requires litigating parties to discuss during their initial planning conference the following:
(C) any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order;
Fed. R. Civ. Pro. 26(f)(3)(C)–(D).
Sadly, too often a discussion of disclosure and discovery of ESI ends up just paying lip service to the rules’ purpose and litigants just exchange canned language. You do yourself and your client a disservice if you let this happen. It is essential to be prepared for the meet and confer. You need to be prepared to present a plan, protocol, and schedule to an opposing counsel and to know the items about which you want to reach a consensus. Use checklists that help you prepare a well-reasoned strategy. One key resource to review is The Sedona Conference “Jumpstart Outline”: Questions to Ask Your Client & Your Adversary to Prepare for Preservation, Rules 26 Obligations, Court Conferences & Requests for Production (Mar. 2011), www.thesedonaconference.org.
Do not allow this opportunity to control the pace of the game to slip away. If it does slip past you, do not give up attempting to decrease the scope of discovery. This is a topic that can and should be revisited frequently with your opponent as litigation evolves. Ordinarily, the producing party pays the cost of production; however, the costs can be quite expensive, especially when requests encompass ESI that is not conveniently or reasonably accessible, such as archived backup tapes. Look to Rule 26 of the Federal Rules of Civil Procedure, which also addresses the burden of e-Discovery and limits a party’s ability to obtain discovery from sources that are not reasonably accessible and create undue costs. See Fed. R. Civ. Pro. 26(b)(2)(B). Keep in mind that the producing party bears the burden of showing that requested information “is not reasonably accessible.” Additionally, new proposed Federal Rule amendments and recent case law promote proportionality and cost shifting.
Although cooperating is important, remember that the producing party remains in control. As explained in one court decision,
The Sedona Principles wisely state that it is, in fact, the producing party who is in the best position to determine the method by which they will collect documents. The producing party responding to a document request has the best knowledge as to how documents have been preserved and maintained. That being said, the producing party under the Sedona Principles doesn't have carte blanche to specify the mode of collection and it is clear that manual collection is sometimes even disfavored. However, absent an agreement or timely objection, the choice is clearly within the producing party's sound discretion.
Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D.N.J. 2009).
Bring Production In-House
To the extent that you can bring your production-related tasks in-house, as opposed to relying upon vendors, you may realize tremendous cost savings. However, this does not mean that the assembly line should be any less organized than if an outside vendor handled it.
Late night ad hoc productions accomplished by attorneys at their desks, without the benefit of coordination and oversight, can create as many down-the-road headaches as up-front savings. The risk of hubris here might be greatest with members of the younger set who are very fluent in technology and might not think that they need the involvement of litigation support personnel. In that regard, one of the best investments that you might ever make will be to hire or train staff to be well versed in e-Discovery issues that arise in preservation, collection, review, and production. This means a very different and unique skill set than what you might find your current technical support staff to have. However, if building the in-house resources to handle productions is not feasible, working with vendors is not only a valid choice, it is the responsible decision.
Ask What Your Client Can Do for You
Your client may or may not be in a position to devote resources to e-Discovery. It may create just too much business disruption. However, if your client does have IT or legal personnel who can act as an extension of you on the ground, especially for administrative and ministerial tasks, that cooperation can multiply your person-power, this could help you. Many larger clients are well-versed in e-Discovery and prefer to do a lot of their own work in this area to keep costs down. This is a discussion that should be held at the outset of a client relationship to determine what a client might be able to assist with, what the client would prefer to assist with, and what the client expects to assist with.
Even if your client’s personnel have limited time and ability, the lines of communication should be kept as open and free-flowing as possible. These folks live inside a business day to day. They understand their systems. They know the written policies and practices, and they are the only ones who know the unwritten ones. Instead of just instructing your client’s people to complete a task for you, explain why you request it and ask if it is the most efficient way to reach your goal. If you do not ask, you may find, for instance, that an IT person will do exactly what you told the person to do, even though he or she knew at the time that it would never work or that it would yield unusable results. Allow a client’s personnel into the problem-solving process. They can tell you how to find the data that you need, or inform you that the data no longer exists, is inaccessible, exists only in some unworkable form, or is prohibitively expensive to chase down.
Of course, an attorney must be careful never to delegate too much, whether to the client, or to anyone else. This is true for any number of reasons, including that under Federal Rule of Civil Procedure 26(g) an attorney attests that to the best of his or her personal knowledge disclosures are complete and correct.
Somehow your carefully crafted, narrowly tailored discovery requests and your up-front negotiations with opposing counsel during the Federal Rule 26 meet and confer have still yielded more documents than your office will ever be able to review. Meanwhile, you are pretty sure that the other side has teams of reviewers working around the clock that have laid eyes on every single document that any party or nonparty has produced.
There are a few options. Occupying every single associate you have employed may be tempting. Some disadvantages of that route include that during the document review and production, these associates will miss out on the very training opportunities that drew them to a smaller firm. When the dust settles, the associate pool may consist of folks who know precious little else beyond how to code documents, and they may be quite dissatisfied with their jobs, even in this economy. One answer to this is to include these folks, those who know the documents best, in more constructive fact-development projects along the way, such as creating time lines or drafting orders of proof or devising deposition witness kits. Furthermore, using your current associates for document reviewing typically ends up being much more expensive both in terms of hourly rates and the hours spent than taking another route.
Hiring outside document reviewers is often a better solution. This provides a short-term way to expand your firm without actually hiring new attorneys. Most of the work is done remotely from the reviewers’ own computers. The reviewers know the technology and are used to large productions.
Technology-assisted review is another way that medium-sized firms can run with the big dogs. Using various electronic tools and searches, document productions can be narrowed without having every single document received in production reviewed by human eyes. There are risks to that approach, of course. There is always the chance that your opponent has buried exactly one “smoking gun” that no search terms or software process can reach. However, a page-by-page review could just as easily miss a key document. The big reward of using technology-assisted review is cost savings when vast amounts of ESI need to be reviewed. Of course, before engaging in technology-assisted review, make sure that your client agrees with your analysis of the costs and benefits and keep the lines of communication open with your client throughout the process.
Courts have started to endorse technology-assisted review as an acceptable approach to e-Discovery. In one of the first federal court decisions that identified technology-assisted review or predictive coding as an appropriate tool for e-Discovery, Judge Peck noted,
[C]omputer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to ediscovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases.
Moore v. Publicis Groupe, 287 F.R.D. 182, 193 (S.D.N.Y. 2012), adopted sub nom. Moore v. Publicis Groupe SA, 11 CIV. 1279 ALC AJP, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012).
You may also want to consider opportunities to cooperate on technology-assisted review with opposing counsel: “[T]he best approach to the use of computer-assisted coding is to follow the Sedona Cooperation Proclamation model. Advise opposing counsel that you plan to use computer-assisted coding and seek agreement; if you cannot, consider whether to abandon predictive coding for that case or go to the court for advance approval.” Id. at 184. See also The Sedona Conference, “Cooperation Proclamation,” www.thesedonaconference.org.
Never Pay Retail
You may not be able to offer vendors the type of bulk work that might lead to more attention from them and to superior discounts. However, this does not mean that you should accept boilerplate contracts, spotty customer service, or high prices. Get multiple quotes from reputable vendors. Communicate to vendors that you fully intend to establish your firm as a player in the e-Discovery space. Review and revise agreements with vendors the same way that you would any other contract. Similarly, when you receive vendor invoices, question the charges and insist upon detailed billing that you actually understand. Even if you are a small customer, the customer is still always right. It may be fun to be the client for a change.
When dealing with a larger firm in an adversarial situation, it may be easy to lose sight of the fact that what matters is how a court views your e-Discovery activities. It is not a competition over who can collect, review, or produce more. At the end of the day, the buzzwords are reasonableness and defensibility. Being targeted and strategic not only uses less bandwidth, but it focuses on the question that discovery is supposed to address: “What is relevant?” It is not about who has more custodians or more gigabytes or whether back-up tapes were recovered. Will the fact finder have the information needed to decide the case fairly? Once the answer is yes, everything beyond that is just burden and waste.
In a recent well-publicized case, a major law firm confessed to the court after a "Highly Confidential, Attorney Eyes Only" expert report was inadvertently posted to an FTP site by a junior associate during discovery, that it was operating as “650 lawyers wide and 1 lawyer deep.” See Apple, Inc., v. Samsung Electronics Co., Ltd, No. 5:11-cv-01846-LHK, (N.D. Cal. Jan. 29, 2014). This is not a strategy that any law firm can afford to use in e-Discovery, no matter how small. “30 lawyers wide and 1 lawyer deep” is just as dangerous and will also be viewed as akin to a trapeze artist flying without a net.
But even if you ensure that you are 30 lawyers wide and two or three lawyers deep, mistakes happen. For when things do go wrong, a protective order with claw-back agreement can be your new best friend. See Fed. R. Civ. Proc. 26(b)(5(B) (allowing clawback of inadvertently produced privilege material); Fed.R. Evid. 502(b) (providing a standard for the claw-back provision in the Federal Rules of Civil Procedure). Inadvertently disclosing privileged materials can happen to anyone, but without layer upon layer of document reviewers, it may present more of a concern. It is equally important, if you learn about an inadvertent disclosure, to follow the procedures outlined in a protective order. Do not leave home without it.
Leverage Local Knowledge
Use the home court advantage if a larger firm opponent does not have a local office, not through bias but through experience. Again, a court, not your opponent, will decide what is reasonable in your case. Learn what works in your jurisdiction in terms of e-Discovery, and make sure that you understand the idiosyncrasies of your own backyard. Do not forget to look at your local rules and practices because both state and federal courts frequently make their own rules regarding e-Discovery. If you know what a judge has ordered in previous cases in similar scenarios, you will be miles ahead of your adversary.
Do not be shy either about calling up someone that you know who does a lot of “e-Discovery stuff” or whose firm advertises as much on the firm website or picking the person’s brain. Investigate the local networking groups devoted to the discussion of e-Discovery. You might be surprised by how many exist in your area. If you do not locate one, consider starting one. You will likely find that many attorneys, paralegals, and litigation support staff would be interested in participating.
Much free information exists regarding e-Discovery. Between the webinars, the listservs, the blogs, and vendor newsletters, it is not difficult to stay current on e-Discovery. Anyone with an Internet connection can avail his or herself of the latest information on the ever-changing case law. The web abounds with models, samples, and checklists. Vendors are also a great resource of free updates on what’s new and exciting, as well as free coffee or lunch. It does not have to cost to become the best-informed person in the room, even when the room includes extremely high-priced attorneys. Again, joining or initiating an e-Discovery networking group would facilitate even more free exchanges of information.
In sum, e-Discovery is not solely the bailiwick of big firms. It can be done both well and efficiently by smaller firms. So get your slings in hand and be ready for those Philistines—or Yankees. Large firms may seem imposing in the e-Discovery context, given their presumably bigger and better machines. However, as in all aspects of litigation, the human element is what matters.
* This article originally appeared in the April 2014 issue of For the Defense.