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.

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