December 22, 2020 Articles

E-Discovery Starts Before the Complaint Gets Filed

Must-have tips on ESI collection

By Maria-Vittoria "Giugi" Carminati
E-discovery begins with that first email from the client. Learn what to do from there.

E-discovery begins with that first email from the client. Learn what to do from there.

littlehenrabi via GettyImages

A potential client reaches out for you to represent it on a new matter. Maybe you meet with the client in person (unlikely today, unfortunately), maybe you speak by video or telephone, or maybe you communicate entirely by email at the beginning. Regardless of the method, there comes a point where the potential client or newly signed client gathers and begins sending you documents. These documents may include contracts, emails, text messages (usually via screenshots), videos, drawings, photos and other files and documents. While it is common to think of e-discovery starting later after a case has been filed and one or more parties serve written discovery, the truth is that e-discovery begins right away, even before your client starts sending you documents. At this juncture, it is both an opportunity and a challenge to “get it right” when it comes to reducing costs, frustration, and inefficiencies down the line.

Attorneys are used to discussing e-discovery at some point in the case. In federal cases, this usually happens at the Rule 26 Conference, which specifically directs lawyers to discuss Electronically Stored Information (“ESI”) in their development of a “discovery plan”:

Discovery Plan. A discovery plan must state the parties’ views and proposals on: […] any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced[.]

Fed. R. Civ. P. 26(f)(3).  In state cases, the conversation about electronic discovery, if it happens, usually takes place during the rule-mandated scheduling or case management conferral, but state rules don’t always specifically address ESI. Compare Massachusetts Rules of Civil Procedure 26(f) (providing a conference “as of right” regarding electronic discovery, to be held within 90 days from the request) with Washington Superior Court Civil Rules 26 (not specifically addressing e-discovery) and Minnesota Rules of Civil Procedure (mirroring Fed. R. Civ. P. 26). These conversations, though, are taking place far too late in the process. Indeed, e-discovery began with that first email from the client. And here is what to do about it.

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