Electronic Discovery: Costs, Benefits, and Efficiencies in Small Public Sector Cases

Large cases, because of their dollar magnitude or importance, obviously deserve the dedication of extensive resources to the discovery process. But many smaller cases also require the preservation, collection, analysis, and use of some amount of electronically stored information (ESI). How can attorneys meet their responsibilities to provide—and obtain—discovery effectively in a cost-efficient manner?

In this article, I offer several recommendations on how attorneys can meet these objectives. I also provide some useful resources on these topics that can educate attorneys and clients regarding their e-discovery responsibilities. As I discuss in more detail below, one of the most recent such resources has been published by the Sedona Conference and is entitled The Sedona Conference Primer on Managing Electronic Discovery in Small Cases (for ease of reference, I will refer to this document as the Small Cases Primer). I also recommend an important publication by the Bolch Judicial Institute at Duke University Law School, the Guidelines and Best Practices for Implementing the 2015 Discovery Amendments Concerning Proportionality (I will refer to this document as the Guidelines and Best Practices).

Note that I generally cite the discovery rules applicable in the federal district courts, but many state courts have enacted counterpart rules.

In smaller-dollar or smaller-stakes litigation involving public agencies, agency counsel must approach discovery pragmatically and with particular focus on cost. As the Small Cases Primer observes, “[c]lients in small cases often are unable or unwilling to budget for expensive processes, a problem that is not unique to electronic discovery.” With that constraint in mind, there are several concrete steps that agency counsel can take to address these challenges. Whether the agency will be a responding party or a producing party (or both) during the discovery process, discovery can be conducted more efficiently.

Early—and Frequent—Client Consultations

As in any litigation, it is critical that the attorney meet with his or her client at the earliest opportunity. In cases involving a government agency, the general counsel’s office already may know the designated points of contact, which could include program officials, the managers who have decision-making authority on litigation strategy or settlement, and, quite importantly, representatives from the agency’s information technology (IT) and/or records management offices. In some situations, the agency may be able to predict that there will be litigation against it; the question is simply that of the timing of the prospective claimant’s lawsuit. In any event, whether or not the agency knows that it will be sued for “e-discovery readiness,” each component must start coordinating its respective tasks.

First, the attorney needs to work immediately and proactively with the client’s representatives on the preservation of relevant ESI. This may be one of the most challenging tasks for any agency, even in smaller cases. Optimally, the agency already will have clear policies in place that instruct its employees to preserve potentially relevant information that the employees have created or stored on computer devices. In the litigation context, such instructions need to be clear and should provide the attorney’s contact information if the agency staff have questions. As noted in the Small Cases Primer, “speaking with [staff] in real time helps to ensure that sources of discoverable information are properly identified and understood by client and counsel.”

Prompt attention is needed to preserve ESI because, otherwise, automatic deletion systems may continue to operate, or agency staff may negligently, or even intentionally, delete ESI, such as emails and text messages. The attorney will need to know the extent to which those systems maintain duplicate or “backup” versions of ESI created by individual users. Per the Small Cases Primer, early client discussions may “avoid disputes, potential spoliation, and avoidable litigation costs down the road.” The agency must put in place a litigation hold (sometimes called a legal hold) in order to interrupt the auto-deletion functions and to remind employees of their ongoing responsibility to preserve relevant ESI. Courts will not hesitate to impose sanctions on agencies—or their attorneys—if ESI has been deleted.

In today’s post-COVID work environment, reminders to employees are particularly important because of the persistence of remote and flexible telework schedules. In recent years, many employers have permitted employees to use their own personal devices for work-related communications and to bring their own devices (BYOD) to the workplace. If agencies develop BYOD policies, preservation of agency information needs to be a key component. The failure of even a few employees to heed preservation instructions could impair the agency’s defense of the underlying decision.

In addressing preservation, the agency attorney should schedule interviews with agency personnel at the earliest opportunity. The attorney then will learn how the agency stores its ESI and thus can identify the custodians of digital or physical files and records. It also is particularly important to interview the individuals who were involved in the challenged policy or decision. Their ESI could become the predominant focus of preservation, collection, and review. In smaller cases, that focus may save unnecessary time and effort by the agency attorney, who otherwise might cast too broad a net to try to locate all possibly relevant ESI. The interviews will be an early opportunity to learn about the case from the staff directly involved in the underlying dispute.

As the e-discovery process proceeds, the agency attorney must issue clear, written guidance to the agency personnel, reminding them of their continuing duty to preserve relevant ESI as the litigation proceeds. The agency attorney and staff should develop checklists that identify ESI sources, the custodians responsible for preservation and collection, and the key witnesses to the case who have ESI and who may continue to create ESI as the litigation proceeds. Agency attorneys, working with the human resources department, also need to monitor the ESI sources held by departing employees.

Attorneys also need to be aware of the pitfalls of asking or expecting agency personnel to participate in the preservation or collection of ESI that may be relevant to the case, at least without very close supervision. Agency staff may not be competent to undertake that task at all because it may require legal judgments—what is relevant and what is not. As a practical matter, the staff may commit errors in trying to save emails or text messages, resulting in the inadvertent destruction or modification of the original (native format) ESI. Some courts have been quite critical of the practice of “self-collection.”

Cooperation with Opposing Counsel

As we are all too well aware, litigation in both the federal and state courts is an adversarial process. The discovery process often brings out the worst of attorneys—and sometimes clients, too. The challenge in the complex world of ESI is to be cooperative. Why? Because cooperation with opposing counsel can become very helpful in managing the burden of producing ESI. Negotiation—and agreement, hopefully—as to the scope and timing of the production is important. As the Small Cases Primer observes, “the most important principle in discovery in cases of any size is cooperation,” and cooperation should take on a “central role” in managing discovery “effectively and efficiently” in small cases.

Under Federal Rule of Civil Procedure 26(f), counsel have a duty to “meet and confer” about case scheduling; “discuss any issues about preserving discoverable information; and develop a proposed discovery plan, including any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.” Such conferences are the predicate for the judge’s issuance of a comprehensive scheduling order under Federal Rule of Civil Procedure 16(b). The e-discovery topics should be discussed at the earliest stage of the case, rather than postponed. An early conference also gives attorneys the opportunity to discuss, or even exchange, their proposed discovery. Federal Rule of Civil Procedure 26(d)(2) authorizes the early lodging of discovery soon after service of the complaint, facilitating the “meet and confer” process.

A face-to-face, or, if that is not practical, a Zoom meeting among counsel may clarify what discovery is needed or is essential to the case. This meeting may spare each party the burden of crafting a series of lengthy discovery requests that may never be needed. As the Guidelines and Best Practices observe, the conferences “should result in a proposed discovery/case-management plan with enough detail and specificity to demonstrate to the judge that the parties are working toward proportional discovery and to avoid unnecessary delay.”

Specificity in ESI or physical document requests is particularly important in smaller cases, when a party’s resources can become strained or diverted from other obligations. Faced with broad requests, agency staff may be required to search through physical and online archives. Courts are frustrated by what they call “boilerplate” requests for ESI that demand broad categories of information.

Whatever the scope of the agreement, the parties must put it in writing and not rely on a “handshake” or a conversation that recaps the agreement. A short letter or memorandum will provide clarity for the e-discovery process going forward—and also can avoid later misunderstandings or disputes. A number of federal district courts have posted guidance on the specificity that is expected.

In some complex litigation, the parties’ counsel may enter into comprehensive ESI protocols, setting out in great detail, inter alia, the specifics of preservation and production. In smaller cases, however, it may not be worth the attorney’s time to engage in that project. A simpler agreement may be easier to craft and easier to implement. Clarity as to the ESI sources to be searched, how they will be searched (e.g., automated review processes), and the timelines for completion are essential.

Regardless of the magnitude or the type of case, however, attorneys also need to be aware of the possible need to preserve the “metadata” associated with the specific ESI. Metadata is sometimes colloquially referred to as “data about data.” The failure to discuss whether ESI in its native format will be included in discovery production can result in later disputes and a significant expenditure of resources to provide such ESI if the court determines that metadata is to be produced. This is another example of the importance of the attorney working with the IT staff or an outside vendor.

Defining and Implementing the Scope of Discovery

Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery as “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The “proportionality” principle is particularly important in scaling the range of discovery in smaller cases. Through the “meet and confer” process, the burdens of discovery can be mitigated by clear limits on the date ranges of discoverable ESI, the specific sources of ESI to be searched, and how to search agency (or other) databases for potentially relevant information, which could include sampling.

In a small case, the “first focus” also should be on the ESI that is “easiest to collect, produce, and review, which in many instances may be more than enough to achieve a resolution of the dispute.” The Guidelines and Best Practices also emphasize that the parties should focus on accessible ESI: “Discovery into those subjects and from those sources is usually proportional to the needs of the case because it is likely to yield valuable information with relatively less cost and effort.” This first phase may be uncontroversial and can proceed without judicial involvement. “The process is simply the familiar one of making smart choices about the most productive steps to get the information the parties need most and first.”

In smaller cases, another alternative to engaging in broader and more burdensome discovery is found within Federal Rule of Civil Procedure 26(a)(1): the “initial disclosures.” Under this rule, a party must, “without awaiting a discovery request,” provide to the other parties certain information, including “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment,” and the identities and description of witnesses who will support such claims or defenses.

Initial disclosures may work well in some employment litigation (e.g., outside the class action context). Based on a November 2011 recommendation of the U.S. Judicial Conference’s Advisory Committee on Civil Rules, a number of courts have adopted the Initial Discovery Protocols for Employment Cases Alleging Adverse Actions. These protocols are designed to elicit the key information about the employment dispute early in the case. Under the Protocols, the plaintiff and the defendant, in succession, must produce, inter alia, all communications concerning the factual allegations of the claims at issue and also related claims, documents concerning the employment relationship at issue, and relevant personnel files, performance evaluations, and workplace policies. Although the Protocols are designed for employment litigation, they could be customized for other types of simple litigation involving one or several plaintiffs. After one round of initial disclosures, the parties could meet and confer and develop more targeted discovery requests that will locate other ESI sources that could be needed to establish or refute the claims at issue.

Using Appropriate Technology

Another efficiency to build into the discovery process in smaller cases is early attention to the level of technology that may be needed. The agency attorney, with the assistance of the IT staff, should investigate appropriate automated review tools and outside vendors who can apply their expertise to ESI review. This also is an educational process because “[t]ools are only as effective as the skill of the user.” Key questions include the price tag and what time efficiencies can be realized by automated review. Will automated review capture the principal ESI sources that will be collected for production? Is the time and money to be expended worth that investment?

New Media and Production Formats

In smaller cases, the attorney will evaluate what discovery might be demanded or produced from newer electronic media sources. We are all familiar with the challenges of preserving, collecting, and producing email and text messages, but the COVID pandemic and other changes in business meeting formats have given new life to various media, including Zoom meetings. In addition, newer media often communicate information that has little or no storage time, so-called ephemeral messaging. If employees use devices that have those features, there may be court sanctions against the employee or agency if relevant information is not preserved.

As the agency prepares to produce ESI, it also must consider the various and often unique forms or formats in which ESI has been preserved or stored. If not resolved during the meet and confer process, misunderstandings as to how ESI will be produced will lead to inefficiency and acrimony. Finally, the discovery process is a prelude to the presentation of relevant ESI for trial or summary judgment proceedings. Close attention to the authenticity and admissibility of ESI is important as the agency prepares its productions.

Conclusion

Agency attorneys in smaller cases can refer to the guidance of expert reference works as they prepare their affirmative or defensive cases. Discovery can be less costly and less burdensome if the attorneys rely on the proportionality principle and seek efficiencies in the discovery process.