Ediscovery was once the sole concern of Big Law and large-scale litigation, but it is increasingly an issue in smaller cases for small and solo law firms. This excerpt from our small firm ediscovery White Paper is an introduction to the rules and case law attorneys need to know, and it outlines a philosophy that allows smart attorneys to secure a just and fair decision for clients in the face of a deluge of digital evidence.

Small firms and solo lawyers are learning some hard lessons about the benefits and burdens of obtaining electronic evidence in litigation. The bottom line is that small cases cannot be litigated with uncapped ediscovery costs. Unfortunately, attorneys litigating a $50,000 case are often confronted with cost estimates of $500,000 for discovery services. However, by working within the new Federal Rules of Civil Procedure and effectively deploying technology, any attorney should be able to effectively litigate any matter and keep costs under control.

In fact, small firms can effectively conduct complex ediscovery battles and forensic investigations themselves while offering the same level of service as any large firm. In this guide, you will find the knowledge and resources you need to effectively manage discovery requests, head off inappropriate demands, and maintain proportionality in the discovery process.

Make the Rules Work for You

The adversarial nature of the system of law in the United States is not about cooperation and playing nice. In law school, lawyers are trained to crush their opposition. But in ediscovery, the updated Rules of Civil Procedure and emerging case law actually make it possible to make discovery a cooperative process – and if you know how to make the rules work for you, they can level the playing field for a small firm.

Discovery rules and pretrial procedures are designed to remove the risk of surprises at trial and provide a more fair contest “by requiring disclosure of all relevant information.” However, discovery of all possible relevant information in our electronic world is not always possible. If parties try to collect and review all available information, the party with more money to spend will likely control the process. That is why small firms must work hard to keep the focus as narrow as possible.

To start, every small or solo law firm attorney should familiarize themselves with the Sedona Conference’s Cooperation Proclamation. The document promotes a less adversarial approach to discovery that is not only practical, but has been endorsed by judges across the country.

Begin any discovery process by meeting with opposing counsel, and work towards a consensus about the scope of preservation for both sides. To avoid conflict and confusion, these negotiations should be carefully documented. Topics of particular interest include the development of search and retrieval methods and the disclosure of data sources. Ignoring these issues may mean you miss the best chance to find data within a reasonable timeframe and cost.

Collecting the Evidence

Evidence can come from a lot of sources, and few lawyers can be expected to fully understand them all. Deleted files, metadata, internet history, email, hidden operating system files, cellular phones, cloud storage, handhelds and removable storage media are all discoverable.

But since Microsoft dominates the world of technology, lawyers will probably find that a lot of discoverable data is in a small number of formats, like Microsoft .pst files, which come from Microsoft Outlook email. Mastering commonly used formats means attorneys can handle at least some cases themselves without expert help.

Small firms tend to specialize, so get to know the common file types in your area of expertise. Certain types of cases will likely involve the same types of data sources, so don’t send broad discovery requests when a single data source is all that’s needed. For example, in employment law, it’s useful to know what types of databases are commonly used to track employment records, how data is stored, and how to extract that data. In this way, lawyers can quickly extract key data early on to make a case.

Rather than requesting entire computer systems, it is usually preferable to obtain a forensic image of the computer, which is a bit-by-bit image of the data. The data in the imaged computer is not touched at all. At the end there will be a mathematical algorithm, often referred to as an MD5 hash. The MD5 matches to the MD5 of the acquired computer hard drive, allowing you to scan the evidence without corrupting it. In some cases, examiners can scan for hash values for known illicit content.

Keep it in Proportion

For small and solo firms, keeping the cost of discovery in proportion to the likely disposition of a case is key. Fortunately, the courts take this issue seriously as well. Proportionality is a factor in the evaluation of efforts made to identify custodians and sources of ESI and to preserve them.

As the court said in Rimkus v. Cammarata (S.D. Tex. Feb. 19, 2010), “Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done – or not done – was proportional to that case and consistent with clearly established applicable standards.”

To support proportionality analysis, courts have relied on balancing tests that weigh the potential value of evidence to a matter versus the cost of finding such evidence. Knowing this, lawyers for the producing party should be prepared to discuss, in detail, whether such evidence is likely to exist and what the cost is to produce. Likewise, requesting parties should have detailed information about why data is valuable and what it might cost to discover.

Courts have shown very little patience with parties that either do not have such information or try to obscure the facts with made up or inflated cost estimates. And as discussed earlier, phased discovery can save time and money. Why demand the ESI from every potential witness in a case when a more targeted approach might better serve your needs?

Narrow it Down

The document dump is still a common practice in discovery. At its most basic, it is the practice of sending opposing counsel as many files for review as possible close to the start of a trial. But today, the data dump can actually provide an advantage to the receiving party.

Unlike the paper world, where large law firms often had to throw teams of attorneys at a document review project, technology levels the playing field down to one person and a computer. For small or straightforward cases, small firm lawyers are learning to manage the discovery and review of gigabytes of data themselves.

Prior to review, parties should deploy deduplication and deNISTing technologies to eliminate redundant and unnecessary files. Other culling techniques to use include simply searching collected data by date range or other file type limitations. Although considered routine, these culling methods can still become sources of contention, so always document their use.

Also, know where the review process might break – in particular, which areas opposing counsel might challenge your search. Tasks that can often be challenged include extracting email and attachments, decrypting and extracting data, and the preparation of load files for use in review platforms. One case to review that covers much of this ground is J-M Manufacturing Co., Inc. v. McDermott Will & Emery (Los Angeles Superior Court, Case No. BC462832, removed to U.S. District Court (C.D. Cal).

Conclusion: Small Firms Are Not Disadvantaged

Small firms might imagine ediscovery is like a John Grisham movie, where a plucky young attorney practicing law in a rundown office is hopelessly outgunned by a large, well-heeled law firm. There certainly was a time when big law firms could count on bigger budgets and staff to out-muscle opposing counsel at smaller law firms. In contemporary litigation, properly deployed emerging technologies can actually provide small firms with the same capabilities as any larger, better funded firm.

In small cases, the cost to do electronic discovery should fall under the $10,000 mark. A divorce over limited assets, breach of contract suit between an individual and a small company, criminal cases such as child pornography or online stalking, or theft of proprietary data cases cannot often sustain more than this amount.

Fortunately, Software-as-a-Service (SaaS) applications offer attractive pricing models and pay-as-you-go technology pricing, allowing firms to perform discovery tasks in-house instead of paying the vendor for those services. It also eliminates the need to buy, install, and maintain expensive software. With the right software and processes in place, small and solo firms can effectively litigate any matter, even if the opposition is a large, well-heeled firm with infinite resources.