General Practice, Solo & Small Firm Division

A service of the ABA General Practice, Solo & Small Firm Division

Technology eReport

American Bar Association - Defending Liberty, Pursuing Justice

JUN 2009

Vol. 8, No. 2

Features

 

Try Not to Let the Gigabyte You: How Small and Solo Law Firms Are Leveraging Electronic Discovery to Cut Costs, Save Time, and Win More Cases

By now the news that the recent electronic discovery related amendments to the Federal Rules of Civil Procedure (FRCP) have become a reality are old hat to most small and solo law firms. What matters more to the small shop attorney is how to overcome the substantial hurdles that the new rules place on their firm.

To start, there are the high costs that a small firm may incur when obtaining vital electronic stored information (ESI) to be used as evidence. How can a small firm curtail ediscovery expenses? Next, a large firm may deliberately bog down a solo practitioner with superfluous discovery to diminish the solo practitioner’s fiscal and personnel resources. Are there simple methods to manage voluminous amounts of data?Finally, a small firm may be required to work with an outside electronic discovery expert to assist in reduction the extent of a data search, assess what discovery should be readily or advise on which format the discovery should be produced. When and how does a small firm engage electronic discovery experts?

Whether and how small and solo law firms grapple with these issues can—and will—determine whether their next case that involves ediscovery fails or succeeds.

Strategies to Lower Your Firm’s Ediscovery Price Tag

Step one to lowering the costs of electronic discovery for small and solo law firms is always education. Only by comprehending completely what ESI is available during discovery and how it is transmitted and stored will these firms be able to slash their discovery expenses. This understanding must include how the data is stored, how it can be searched, and the format it is stored in. Having this knowledge is powerful, especially when competing against a large firm. It will enable the small firm to effectively and proficiently attain the needed discovery in a time- and cost-effective manner.

One relatively low-cost method for small and solo law firms to learn about ESI is to conduct some basic Internet research. In addition, there are numerous experts, as noted below, to consult with on issues that relate to ediscovery. Take a look at their websites to get a gist on relevant terminology and the ediscovery sphere the firm will be walking into. Talking with any technologically savvy colleagues the firm may have about electronic data will help as well in gaining the knowledge necessary to take on the large firm.

After your firm has a grasp on the electronic data needed, have a conversation with the firm’s information technology expert. At this point make sure to ask the IT expert to go over how email is maintained, the variety of available backup systems, and the meaning of deleted files. Only then should questions that relate to the case be asked of the IT professional. When conducting this conversation, be sure to ask about the universe of data that may be available and compose a plan of action to retrieve the data. Performing internal industry research and using the know-how of the firm’s IT professional are low-budget, low-effort ways that small and solo firms can easily capitalize on to obtain excellent results from the important data the case needs, no matter the opponent.

Next, to lower ediscovery costs, small and solo law firms must settle on the scope of electronic data to be examined. Small firms must pinpoint their needs and determine which evidence is necessary to win the case. Once this information is determined, small and solo firms will then know whether the ESI in question will indeed help the case.

To know when to go after a specific email, thumb drive, or laptop, small and solo law firms need to take a step back and plan their electronic discovery strategically. Think about it this way: Plain and simple, if the case lacks a foundation, it will crumble. To create this foundation, the small firm will need to effectively use all of the arrows in its proverbial discovery quiver to outwit a larger firm with more resources. These are inspections, requests for production, interrogatories, depositions, and requests for admission. Being smart as to how and when to use these tools before jumping into ediscovery will help small firms determine whether a particular piece of ESI is a must-have or a can-do-without.

Once the firm has an understanding of what ESI is available and which ESI it needs, the amount of ediscovery to be conducted will be minimized. As a result small and solo law firms will reap the financial rewards of lower ediscovery costs and a preservation of firm resources. Be sure to request only the ediscovery essential to the firm’s comprehensive, strategic discovery plan. This will substantially minimize the firm’s prospective expenses, the time spent squabbling over these points, and the enormous number of hours the firm will need to allocate reviewing data that may be completely useless to the case.

Email, Spreadsheets, Hard Drives . . . and More Email: Is There Even a Needle in This Digital Haystack?

A central tenet to any winning discovery plan is to know exactly what information is necessary to win the case. Of course, the flip side is also equally true. Realizing what data is not needed is equally critical to avoid wasting valuable firm time and resources. In order to realize the difference, small and solo law firms must focus only on what its needed to succeed. Furthermore, with the recently revised FRCP amendments, small firms will need to have a handle on these issues earlier on in the case lifecycle. Being proactive will help them avoid situations that will pointlessly slow down the case by obliging the firm to enter into a pricey ediscovery journey that will not get it any closer to its objective.

The FRCP amendments require all firms to discuss their ESI with opposing counsel during the initial scheduling conference. With the timing pushed up in Rule 26, firms are forced to make decisions early on as to what data they pursue. In particular, small and solo law firms should seize on scheduling conference and use its early occurrence to their advantage against larger firms by using their learned knowledge of ESI to pin the other side down early. In other words, set the terms with the other side by having a detailed, well-thought-out ESI battle plan for deployment before walking into the that first scheduling conference. By doing so, small and solo firms will have effectively narrowed the issues to which they can be obligated to produce and review documents and learned, early on, what their opponent’s ESI position is. Consulting with the firm’s IT professional will be invaluable at this stage to estimate production costs, draft discovery requests with the required amount of technical specificity, and evaluate the other side’s data systems.

Once within the initial Rule 26 conference, small and solo firms should focus on opposing counsel’s ability to preserve evidence. This includes the quantity and types of ESI in play as well as the name and location of any pertinent backup systems. Becoming familiar with the electronic storage systems before the conference is paramount in order for an ESI discovery plan to be properly discussed at the conference. To avoid ESI glitches along the way, small and solo firms should take their IT professional to the conference and suggest that their opponent follow suit.

To further limit the amount of data opposing big law can send out, small and solo law firms should clearly state the format of production that will produce the optimum outcome for their case. FRCP Rule 34(b) grants parties this ability to designate the format for production. When the initial Rule 26 conference has concluded, small and solo firms should have a better grasp of what format to employ when requesting their discovery. Should the format of production not be clearly stated in the discovery request, small and solo firms must be advised that their then opposing counsel can demand the format in which it will provide the ESI. This will allow opposing counsel to produce the ESI in a reasonably usable format or as normally maintained—both of which may or may not be the best format for a small and solo law firm’s case.

Needless to say, small and solo law firms need to then conduct their internal research to determine the drawbacks and benefits to each format in order to succeed. This know-how involves mastering the four formats commonly used for the production and review of ESI. They are the following: native files (that is, in the form that the files are ordinarily kept on their source computers and storage media); printed paper; online repository tools containing responsive documents; and litigation support load files, TIFF images, extracted text, and metadata. Knowing which ESI formats will be most beneficial for the case while keeping costs down will give small and solo law firms a leg up over their large-firm competition.

Finding the Right, Affordable, Technology Expert

An effective and low-cost method for small and solo law firms to retain basic IT expertise is to educate themselves on the options available in the their local talent pool. This grouping may include university professors, IT personnel at midsized businesses, and graduate students from local IT technical institutions. These low-cost resources should not be ignored, as they represent effective ways for small firms to leverage IT expertise when challenging larger firms. These individuals will more than likely agree to work at a rate lower than conventional IT experts and on a part-time basis. Small and solo law firms should consider utilizing them as a nontestifying expert and maximizing their know-how to resourcefully gather the data needed from the opponent’s ESI.

For more extensive ESI advice, small and solo law firms should look to a competent and affordable ediscovery expert for guidance. This individual will give the firm an in-depth understanding of the relevant data systems and what types of information that is being sought by the opponent. Although brining on an ediscovery expert may be counterintuitive to minimizing expenses, allocating a little on an ediscovery expert will save small and solo law firms a lot long term. Similar to any case, small and solo firms should seek the best expert available within their means. Just as a firm would not take on a medical malpractice case without conferring with a medial expert, it should not step into the world of ESI without a qualified, knowledgeable ediscovery expert.

The recent FRCP amendments, coupled with the intricacies of ediscovery, make retaining an ediscovery expert at the early stages of the case a priority for small and solo law firms. In order to make the commitment to bringing on board an ediscovery expert affordable, think about alternative payment options with the expert. Small and solo law firms can settle on a flat rate fee per case or decide to simply have the expert on a retainer if they have a substantial caseload. In addition, ediscovery experts often employ knowledgeable junior associates at a lower rate. Small and solo law firms should be sure to request that their ediscovery expert have their associate work on their project in order to reduce expenses.

Challenge or Opportunity?

Recent changes to the Federal Rules of Civil Procedure as they relate to ediscovery present unique challenges and opportunities to small and solo law firms. These hurdles are felt most acutely when allocating budget and resources to manage ESI. With thoughtful preparation and the usage of a qualified IT or ediscovery professional, small and solo law firms can use the FRCP amendments on ediscovery to substantially augment the quality and quantity of discovery when opposing larger firms. The key to triumph is to not to shy away from these new rules or from contemporary ESI technologies. On the contrary, small and solo firms should embrace the new reality and prevail with it.

Michael Swarz, J.D., is based in Los Angeles, where he works for eClaris, Inc., an ediscovery consulting firm dedicated to helping law firms and corporations classify, process, and review electronically stored data. He can be reached at mswarz@eclaris.com or through www.eclaris.com.

© Copyright 2009, American Bar Association.