Big corporations, and their big law firms, have many more resources to throw at electronic discovery than smaller clients and their lawyers do. But that should not cause solos and small firm lawyers to fear the e-discovery process—or to think that the process is a break-the-bank proposition for their clients.
Many cases that should involve electronic documents, and therefore e-discovery, end up in courtrooms with nothing but boxes of paper and binders. Here’s the scary reason behind that reality: Most lawyers, even those who use a range of technology every day, are still uncomfortable dealing with electronic documents in discovery. Hence, there is often a tacit or even an explicit agreement between opposing counsels of the “don’t ask for e-documents and I won’t either” type. The worst part is that generally these lawyers are convinced they are helping their clients by saving them money and hassle. In most cases, the opposite is the truth.
So to help increase your comfort level with e-discovery, here are some pointers to use in your everyday small or medium cases. The goal is to help you, your firm and your clients (be they individual or corporate) handle e-discovery cost-effectively.
It’s About the People and Processes, Not the Technology
There are volumes written about all the different technologies that help IT personnel and forensics experts find, collect and process data, as well as the tools that support lawyers’ electronic document management. In the midst of that, we tend to forget that discovery itself is, and has always been, a process about people.
When it was a paper-only world, a lawyer could rely on clients and witnesses—the “custodians” of the information—to provide the potentially relevant documents. Lawyers didn’t feel they were personally responsible for manually going through all of a corporation’s documents in search of the needle in the haystack. And in the electronic world, the same fundamental principle applies, so do not get distracted—or intimidated—by thinking that you need to do your own e-discovery, or jump all over your client’s brand-new software to search for information on its network. You’re going to rely on the information custodians and IT people to provide you with that.
Accordingly—as in the old discovery days—when you approach a case, first think about the people who should be involved. The clients, the potential witnesses, all those who have the information you are interested in. Start gathering that information to better understand your case and the type of documents you are interested in, and then involve the IT folks to help you identify, preserve and collect the data.
It Is Still Legal to Trust Your Client
This is a direct corollary to the preceding pointer: The mere fact that someone may not know everything does not mean that person is lying. So don’t automatically become suspicious when, for example, a client tells you he doesn’t have certain documents on his computer system. In most cases it’s true even if, by digging into the system with sophisticated tools, you tried to prove him wrong by finding one of those documents.
Thus, unless you have reason to believe the custodian has no or a really low understanding of his technological environment, you should not systematically second-guess him and prefer technologies over testimonies.
It Is Best to Think Ahead for Each Phase
As mentioned earlier, process is key to successful e-discovery. Accordingly, you want to think seriously about the to-dos and the timing involved in each step of the process and plan ahead for their proper handling. Many lawyers tend to operate under a “run to wait” model and they apply that habit to e-discovery. However, e-discovery commands that you follow the “wait so you can then run better” model.
Accordingly, on the first day of a case, try to visualize each phase of e-discovery. As your guide, follow the Electronic Discovery Reference Model, or EDRM. The following lists the main stages of the process:
Go to www.edrm.net for a diagram of how the stages flow and to get more information about each stage.
You want to imagine the range of potential issues and challenges that you and your client will be facing at each stage and try to identify solutions up front. It might take more time and cost more money in the beginning, but the ROI will be worth it.
All Data Are Equal—But Some Are More Equal Than Others
When parties try to identify the potentially relevant information for preservation purposes, they often end up looking at all the information that they are preserving as a whole. Instead, you should create a hierarchy of information based on the various pieces’ relative importance to the case. This will enable you to collect, process and review the information progressively. As a consequence, the lawyers reviewing the documents will see the most relevant information more quickly and should be able to better and more effectively review the information that follows in turn.
This approach will also improve data processing by revealing earlier in the process what new filters, keywords, concepts and the like might be used to uncover further information of relevance in the various custodians’ systems. So, taken as a whole, it will make the process flow in a more efficient and cost-effective way.
Proportionality Is Appealing at All Stages
Just like data, some cases are more equal than others. Unfortunately, as lawyers we tend to lose perspective and focus so much on all the things we could do in our cases that we forget what each case’s true value to the particular client is. In the course of that, we sometimes let clients make some questionable risk management calls. And sometimes those calls are what drive a litigation budget out of control.
Here’s how to guard against that happening (to the best of your ability, at least): Before every step of the e-discovery process, from identification through review, ask yourself why a decision regarding evidence is being made and if its cost is proportionate to the case. For example, is it necessary or mandatory to identify and preserve the data of 300 custodians in a $100,000 case? If your client has Google Enterprise, it might seem cheap to take control of all the data, given the affordability of surfacing it. However, the cost and delays to collect and process that volume of information will outweigh the value of the case itself.
The Opposing Counsel and Her Client Are Your Friends
Usually, there is much information that we are justified not to share with the opposing party. However, when it comes to e-discovery, frequently the wisest course is to put some cards on the table and expose the reality and your intentions to the adversary.
For example, if you just uncovered 2,000 unidentified backup tapes in a closet, you may be forced to preserve them. However, it is easier, and probably risk-free, if you can agree with the opposing party to do one of two things: either to destroy the tapes because no one has any intention of restoring or indexing them based on the aforementioned notion of proportionality; or to do a sample to get a better idea of the relevancy of the tapes’ content. If you don’t want to meet and confer because you think your e-discovery strategy is what will make you win, perhaps you need to reassess your case!
So, the bottom line on handling e-discovery for smaller cases? At every stage, mind the three Ps: people, processes and proportionality.
A SNAPSHOT OF SOME SMALLER CASE E-DISCOVERY TOOLS
Most lawyers are not qualified to “play tech-savvy” about e-discovery. Here, however, is some general information that may be useful when dealing with the information custodians in smaller cases.
To identify certain types of relevant information, custodians could use free or cheap search engines such as these:
Onsite backups could be created using basic tools such as these:
Paper documents can be scanned and run through optical character recognition software such as these free OCR programs:
OCR software can extract text from images, but there are also inexpensive (or free) programs to convert other types of electronic files to TIFF or PDF — here are two:
Dominic Jaar, the principal of Ledjit Consulting in Montreal, works with corporations and law firms to improve their information management processes. He was formerly a commercial litigator.
Get more tips from Dominic Jaar when he speaks at ABA TECHSHOW 2009 in these sessions: