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March 14, 2012 Articles

A Litigator's Guide to Working with E-Discovery Consultants

Several years after the FRCP amendments, the words “electronic discovery” still inspire both fear and loathing for many in-house counsel.

By Matthew Prewitt – March 14, 2012

As we observe the fifth anniversary of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, the words “electronic discovery” still inspire both fear and loathing for many in-house counsel. The routine, low-cost preservation, collection, and review of electronically stored information (ESI) envisioned by the drafters of the 2006 amendments remain elusive goals for most litigants, and the frequent sanctions battles over e-discovery have only heightened the stakes for in-house counsel.

An entire industry of electronic-discovery consultants stands ready to allay in-house counsel’s fears in exchange for what can be substantial fees. In the current economic environment, however, clients may question whether retaining an e-discovery consultant is worth the expense. This question has become even more relevant as in-house counsel and IT managers gain increasing sophistication and experience in addressing e-discovery. Law firms also are marketing their own attorneys and IT professionals as an alternative to retaining a separate e-discovery consulting firm.

No matter how sophisticated your existing resources, there are still many litigation matters that require the assistance of an e-discovery consultant. An e-discovery consultant can augment your existing resources to address novel or complex litigation matters, can form a critical part of your litigation defense against an aggressive e-discovery adversary, and is an essential litigation team member when your company wants to go on the e-discovery offensive.

When Should I Recommend Retention of an E-Discovery Consultant?
Some matters may require the assistance of an e-discovery consultant simply because the scope of a collection would overwhelm the rest of your case team. If the scope of the case will prevent your client’s IT department from supporting the company’s business and strain the resources of your law firm, then it is certainly time to retain an outside consultant, simply to achieve an efficient division of labor. These cases are not difficult to recognize, and outside counsel’s recommendation to the client to retain outside resources to assist with, for example, a 300-custodian collection including both network and local storage locations across multiple client offices, should be neither surprising nor controversial.

Although there is much to recommend having a strong, in-house e-discovery team, especially for companies that must defend recurring, low-value claims, I think that retained counsel should encourage clients to examine carefully the assumption that in-house is always cheaper. No doubt your client outsources many functions to vendors who can deliver on a cost-effective basis routine, commoditized services. Even if your company has sophisticated in-house e-discovery resources, there may be instances where projects can be performed more quickly and cheaply by an outside vendor. Bargain hunting does not require engaging a firm of questionable reputation. Because the industry is by definition project-driven, there is almost always some qualified firm available who has excess capacity because a major case just settled. The consulting firms are also eager to develop relationships with clients who are frequent litigants, and may offer aggressive discounting just to get a foot in the door. Delivering a cost-effective solution that relieves the burden on your client’s in-house resources will be much appreciated by general counsel.

The focus of this article, however, is on those situations where client and counsel may be tempted to rely solely on in-house resources but where they would greatly benefit from the skill set of a retained e-discovery expert. These scenarios generally fall under three categories.

First, you should consider retaining an e-discovery consultant whenever you expect discovery to require your client to make a deep dive into data platforms or business units that have not previously been battle tested in discovery for prior litigation. The unexplored terrain of your client’s information systems inevitably will conceal unknown e-discovery hazards. Every division in your client’s organization has its own data-management and communications culture, and no matter how aggressively your client’s chief information officer engages in top-down management of ESI systems, each group will include some data custodians who have devised some way to “work around” IT policies to manage data in a way that suits their own preferences but creates e-discovery headaches. In addition, databases and software that have not previously been the subject of extensive e-discovery inevitably will have quirks that manifest themselves only during the trial and error of discovery. An e-discovery consultant is trained to anticipate and identify these issues at the outset of litigation and can mean the difference between a litigation victory and an e-discovery disaster.

Second, even if your team has ample e-discovery experience and resources, your litigation strategy still may require the assistance of a litigation consultant. Your team should include an e-discovery consultant whenever you anticipate significant e-discovery disputes with your adversary. It is not difficult to spot when your adversary is spoiling for an e-discovery fight. Does opposing counsel’s team include an e-discovery veteran attorney or consultant? Is opposing counsel pressing e-discovery issues in early case-management conferences? If so, then your company needs a qualified expert who can defend the sufficiency of your ESI preservation and collection, either in an expert affidavit or in testimony before the court. As a non-party industry expert qualified to testify regarding best practices and industry standards, the e-discovery consultant is usually a far more effective witness than a member of your IT department. Simply having a well-qualified e-discovery consultant participate in the meet-and-confer process with opposing counsel may dissuade your adversary from pursuing a discovery motion against your company.

Third, an e-discovery consultant is probably an indispensable part of your case strategy when you expect to go on the e-discovery offensive. Notwithstanding the protests that e-discovery is unnecessary and unduly burdensome, aggressive e-discovery can win cases by finding the “smoking gun” email that undermines your adversary’s case theory or the metadata that shows your adversary’s key document was fabricated for the litigation. Any party who is going on the e-discovery offensive must ensure that its own preservation and collection are beyond reproach and must have the technical expertise to probe the adversary’s production. An e-discovery consultant can both identify the holes in your adversary’s preservation and collection and then explain with the authority of an industry expert the significance of these issues to the court. No party should initiate an e-discovery fight in a significant litigation without the aid of an experienced e-discovery consultant.

Who Is the Right E-Discovery Consultant for My Case?
Retaining an e-discovery consultant does not have to be a substantial litigation expense. The key is defining at the outset why you are retaining the consultant and how you will integrate the consultant’s expertise and resources with your existing team on a cost-effective basis. Finding the right consultant means finding the person or team with the skills and resources that match your needs for the case. That may seem an obvious point, but it is a question that many experienced litigators still forget to ask. The key to managing e-discovery costs is paying for only what you need and making sure you get what you pay for. Defining the objectives for the engagement is thus absolutely critical for a successful project. Returning to the scenarios we discussed above can help you to refine your search.

In the first scenario, you may be seeking assistance to navigate the complexities of unfamiliar IT systems or business units that have not previously participated in extensive e-discovery. In this situation, doing a production for the first time inevitably involves some degree of trial and error, and that trial-and-error process is what can create costly mistakes and delays. In this scenario, you need a consultant who already has gone through this learning curve in similar litigation on similar data platforms at another party’s expense so that your client can reap the benefit of the consultant’s prior experience. Given the volume of complex litigation and the number of consultants currently in the market, you can find a qualified consultant whose prior experience matches the data systems and substantive issues in your case. You may have to search beyond the names that are already in your Rolodex, but it is worth the effort. For instance, if you are defending a pharmaceutical patent-infringement claim, don’t hire a consultant who has spent the past five years working only on corporate and securities litigation. A consultant who does not already understand the industry culture and data systems and who does not appreciate the relevance of the data to the issues in the litigation will create unnecessary delay, confusion, and expense. You have the right to expect your e-discovery consultant to bring to the engagement the same level of industry knowledge and prior substantive experience that your client demands from you as trial counsel.

In both the second and third scenarios, you have recommended retaining an e-discovery consultant because you anticipate significant e-discovery battles with your adversary, either because you expect to be going on the e-discovery offensive to dig deep into your adversary’s data, or because your adversary may attack the completeness of your company’s preservation and production. Here, too, you need a consultant whose prior experience matches the issues and technology for your case, but you also need a consultant who can address the court as a qualified e-discovery expert when discovery disputes devolve to motion practice. In this context, you need to approach the retention with the same care you would use when choosing a testifying expert witness. You need a consultant with the credentials and the communication skills to deliver persuasive expert testimony on the completeness of your company’s or your adversary’s production.

Could My E-Discovery Consultant Become a Key Testifying Witness?
It is a mistake to think of your e-discovery consultant simply as a vendor. Unless and until there is a significant change in the current climate of highly contentious e-discovery disputes and case-killing sanctions, proof of e-discovery compliance can be just as important as the evidence on any of the elements of the plaintiff’s claim. In an era of adverse-inference sanctions and even default judgments imposed for missteps in e-discovery, the expert who persuades the court that your client has complied with its e-discovery obligations can be just as important as your brilliant cross of the plaintiff’s key witness or your toxicology expert’s devastating critique of the plaintiff’s theory of causation.

The role of expert witnesses in the forensic analysis of electronic media will be familiar to many litigators, but the e-discovery consultant offers a very different expertise. Instead of testimony regarding the correct interpretation of digital evidence, the e-discovery consultant instead attests to the sufficiency of the company’s methods for preservation, collection, review, and production of electronic data. The technical complexity and volume of data and the proliferation of sophisticated review tools now frequently encountered in electronic discovery present complex factual questions. Discovery has now evolved beyond the point that counsel can sufficiently address discovery disputes simply by making representations to the court at a case-management conference. Instead, when your client’s e-discovery is under attack, the most effective voice in the courtroom may be an e-discovery expert who can attest to the sufficiency of your client’s e-discovery based on his or her personal participation in planning and managing the electronic discovery for your case and his or her professional training and experience in the methods of e-discovery.

Given the resources invested in some contentious discovery disputes, your e-discovery consultant may be called upon to demonstrate the full range of the testifying expert’s capabilities, drafting an expert report or affidavit, testifying at deposition, or even taking the stand to testify at a hearing. Thus, you should approach the retention as you would any testifying expert, paying particular attention to whether the consultant has both the credentials and communication skill to present his or her opinions persuasively to the court.

Some trial counsel may resist what may feel like an encroachment upon a traditional role for retained counsel. Counsel of record still bear ultimate responsibility for oversight and management of the client’s discovery, and it is not the role of the e-discovery consultant to supplant trial counsel. The e-discovery consultant, however, can be a more effective advocate before the court than trial counsel when technical issues arise. Counsel cannot address the court by testifying as an expert, nor can counsel give deposition testimony when your adversary notices a Rule 30(b)(6) on issues of document preservation and production. Indeed, the complexity of some discovery disputes and the risk of error is such that the e-discovery expert can play an important role simply by protecting trial counsel from the risk of making inadvertent misstatements to the court. In the current atmosphere of heightened sensitivity to e-discovery, even an unintentional error could seriously damage trial counsel’s credibility before the court. Relying on the e-discovery consultant to address the court significantly reduces this risk of error. And, when errors do occur, candidly, it is far better for the court to conclude that your e-discovery consultant has been sloppy than for the court to conclude that trial counsel is negligent or dishonest. In most cases, the e-discovery consultant will vanish from the court’s sight prior to trial, but the court’s perception of trial counsel may substantially impact the court’s perception of the party throughout the litigation.

How Can My Client Afford a Highly Qualified Expert?
Cost-conscious clients may balk at the potential expense—any expert with the skills necessary to be a good testifier may have an hourly rate comparable to trial counsel—but careful management of the engagement can limit this professional’s role to those specific functions where his or her expertise and higher billing rate truly add value. The key is to find a highly qualified expert who can team with others working at lower billing rates and your client’s own in-house resources to leverage his or her knowledge and experience. Thus, after taking an active role in the initial planning stages, the expert should be able to rely on others to actually implement the plan under his or her oversight and supervision.

Because you will want to leverage effectively the billing rates of your e-discovery team, you will need to consider carefully the qualifications and experience of the project managers working at the direction of the lead consultant. Their ability to implement the e-discovery plan developed by the lead consultant and to bring to his or her attention additional issues as they arise is critical to the success of the engagement.

How Can My E-Discovery Consultant Help Me Wage a Strong E-Discovery Offense?
Waging an aggressive e-discovery offense first requires that you have confidence that your client’s e-discovery is defensible. I regularly encounter counsel who never press opposing counsel to correct deficiencies in their e-discovery because they are uncertain whether their own production of ESI will survive scrutiny. The result is a tacit agreement between opposing counsel that neither side will press e-discovery issues, an approach that invites sharp practice by your adversary and silently decides important tactical questions without any input from the client. In-house counsel are often complicit in this silent e-discovery truce, breathing a sigh of relief that retained counsel has managed to complete discovery without either side ever raising any hard questions about e-discovery. The reality is that this easy path may deprive your client of critical evidence that could have determined the outcome of the case. Working with a skilled consultant to ensure your client’s e-discovery is in good order will empower you to go on the e-discovery offensive.

Because of the frequent high-stakes battles over e-discovery sanctions, too many attorneys equate an aggressive e-discovery strategy with posturing the case for a potentially dispositive sanctions motion. In most cases, however, your primary e-discovery objective should be the tried-and-true strategy of obtaining the relevant evidence that will help to win your client’s case. Counsel who are angling for an e-discovery sanctions battle may miss valuable opportunities to win the case the old fashioned way—by proving the merits of the client’s position.

Including the e-discovery consultant in early discussions with opposing counsel can yield important tactical advantages. Particularly in the early stages of discovery, it is still common to encounter counsel with limited e-discovery experience and resources. Reluctant to acknowledge to their clients their lack of expertise, they may concede important tactical points simply because they do not understand the significance of the issues. By maintaining a friendly and constructive demeanor in these initial conferences, your retained consultant may readily induce opposing counsel to rely upon his or her technical advice and insights when negotiating the parameters of your adversary’s preservation, search, and production protocols.

Some trial counsel may resist the notion of giving opposing counsel the benefits of your retained consultant’s technical insights. From one perspective, your client is subsidizing your adversary’s discovery by making available your retained consultant to answer opposing counsel’s questions about the selection of search protocols and production format. In addition, you may be rescuing opposing counsel from errors that might otherwise result in an expensive and embarrassing sanctions motion. However, if the primary objective is simply to obtain a full and fair disclosure of the relevant evidence in your adversary’s possession, then the benefits can be enormous. The federal rules and most state-court civil-practice rules clearly contemplate some degree of cooperation with opposing counsel, and modern civil discovery is premised on the notion that the interests of all parties are best served by avoiding discovery disputes where possible and working cooperatively to ensure reasonably complete disclosure. Litigants who approach e-discovery spoiling for a sanctions fight may sometimes be too clever for their own good.

Of course, you will also encounter adversaries who have the expertise and resources to meet their e-discovery obligations but are simply attempting to game the discovery process. When doing battle with such unscrupulous opponents, an articulate and knowledgeable e-discovery consultant who participates with you in discovery conferences is a strong deterrent to sharp practice. Opposing counsel will quickly realize that they cannot use negotiations over search parameters and production specifications to obstruct disclosure of their “hot” electronic documents.

In short, this author shares the view expressed by many that there are too many sanctions motions arising from e-discovery and that the awarding of significant and potentially dispositive sanctions for e-discovery violations is encouraging unnecessary and distracting motion practice. In most cases, going on the e-discovery offensive should mean only that you are asking hard questions in discovery conferences and demanding a reasonably complete production from your client’s adversary. However, there are still some cases where it is essential to seek relief from the court. When it is time for you to bring a motion to compel or to seek sanctions, your e-discovery consultant is an essential part of the team. An affidavit from the e-discovery consultant explaining why your adversary’s production is deficient may be far more persuasive to the court than a brief submitted by counsel, and simply having the consultant present in the courtroom and available to address questions from the court during argument on a discovery motion, even if the consultant never actually takes the stand, can add credibility to your position. Of course, placing the consultant in the line of fire also requires a high level of confidence in your consultant’s ability to handle the pressure.

How Can I Persuade My Client to Make the Investment?
When you suggest to your client the retention of an e-discovery consultant, you should consider that in-house counsel may view your recommendation as in conflict with the company’s objective to develop and use in-house e-discovery resources. The reality, however, is that an outside consultant can complement your client’s in-house resources and allow you and your client to use those resources more effectively.

If your client has made the investment to develop its own in-house e-discovery team, then the role of the e-discovery consultant in complex or highly contentious litigation is both to augment the existing resources and to mitigate the litigation risks created by reliance on company employees for collection and review. Corporations are most likely to rely on in-house resources in low-value, repetitive litigation where the integrity of the e-discovery collection and review are unlikely to become contentious issues. As a dispute moves outside this comfort zone, then relying solely on in-house resources creates greater risk for your client. Using an outside consultant to work with your client’s in-house resources can expand the number of cases in which your client can safely use its own personnel for collection and review without exposing the company to undue risk. In other words, the judicious retention of outside consultants is the natural next step in expanding your client’s reliance on internal e-discovery resources.

For example, as discussed above, the outside consultant can act as an affiant or testifying witness in complex discovery disputes to vouch for the completeness of your client’s electronic discovery. Although this role can probably be addressed in routine litigation by the leader of your in-house team, in complex or contentious litigation, your client will benefit from having a non-party with greater independence fulfill this role. An outside consultant who is responsible for planning, overseeing, and auditing the collection-and-review process can help your client complete a defensible production while using in-house resources.

Similarly, in-house personnel who are accustomed to addressing the same categories of files in repetitive, low-value litigation may be challenged to address effectively a more complex litigation. Simply having an outside consultant’s fresh perspective with broad experience to provide input on the e-discovery work plan can protect your client from costly mistakes. Working with the outside consultant should be viewed as a learning opportunity for your client’s in-house team, who can increase their technical competence and ability to work more independently on future matters by addressing increasingly complex matters under the supervision of an outside consultant.

These roles need to be clearly defined at the outset of the engagement to ensure that you retain a consultant who can work effectively with your client’s in-house team. Ideally, your client’s in-house e-discovery manager should participate in the selection of the consultant so that you have his or her buy-in on the decision to hire the outside consultant and can begin the engagement with clear lines of communication already established. Winning your client’s chief information officer’s or IT manger’s buy-in also requires articulating very clearly why the company is retaining the consultant so that your client’s internal resources do not view the consultant as encroaching on their responsibilities. If you explain that, because of the nature of the litigation, you expect the consultant to have extensive contact with opposing counsel and to be required to give testimony at a deposition or hearing, then most in-house IT managers will gladly relinquish these tasks. They must understand, however, that the trade-off for avoiding these unpleasant tasks is maintaining clear communication with the consultant throughout the engagement and cooperating fully with his or her requested quality-control and audit protocols to ensure that the consultant can testify effectively when called upon.

This collaborative approach to e-discovery requires a consultant with a very strong skill set. In addition to having the obvious technical knowledge and practical experience, the consultant needs to be an adept manager and communicator to work effectively with your client’s in-house team, as well as be an articulate witness. Consultants with all of these skills may be hard to find. Nor can you offer the inducement of a large case budget with extensive hours to be billed by other timekeepers from the consultant’s firm, because the objective of this model is to leverage your client’s own in-house resources. Making this type of engagement work to the satisfaction of all parties probably means holding out the inducement of relationship building and relationship strengthening for the consultant’s firm, both with your firm and with your client. In other words, the consultants who will be most receptive to your desire to use their expertise to help you leverage your client’s own resources to reduce litigation spend will be the consultants who see the prospect of some other more lucrative future work with your firm and the client.

Keeping retained professionals motivated, efficient, and willing to deliver more for less is of course a primary focus in the current economic landscape. E-discovery consultants are no exception.

Is the Addition of Another Retained Professional Truly Necessary?
In this author’s view, effective pretrial litigation in complex civil actions requires that the e-discovery consultant take a more visible role in communicating with both opposing counsel and the court to resolve discovery disputes. Many e-discovery disputes are ultimately over technology that counsel are simply not qualified to address. When an attorney addresses the accuracy of a particular search methodology or the feasibility of retrieving data from a particular source, the attorney steps out of the role of advocate and assumes the role of expert. Even if the attorney is in fact a subject-matter expert and is not simply parroting concepts borrowed from the real experts, our profession’s delineation of the respective roles of advocate and witness does not readily accommodate the advocate who would address the court based on his or her own personal expertise in complex technical matters. The prudent trial lawyer should become a witness in his or her own case, even if only attesting to the completeness of discovery, only with the greatest reluctance.

Although some commentators suggest that our profession may soon have a standardized set of generally accepted e-discovery best practices, this prediction seems wildly optimistic. The continuing evolution of both the modes of digital communication and data storage and retrieval continue to deliver successive paradigm shifts that defy any attempt to reduce these complex technical issues to a single set of uniform rules. The rapid transition in the corporate environment to the cloud and the scrambling of e-discovery vendors to keep up is only one example of these challenges. Although the courts may reach agreement on broad principles, new systems and platforms and new e-discovery tools will impede any attempt to standardize e-discovery for the foreseeable future and will continue to present novel questions requiring the expertise of the professional e-discovery consultants.

Keywords: environmental litigation, ESI, e-discovery expert, FRCP

Matthew Prewitt is a partner of Schiff Hardin LLP and an editor of the Environmental Litigation Committee e-newsletter.

Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).