Chief U.S. Magistrate Judge Paul W. Grimm, Dist. Ct. Md., has suggested a low-tech way to lower the costs and burden of electronic discovery: Adopt the checklist used by prominent litigator Stephen D. Susman, of Susman Godfrey. The checklist is a list of suggested pretrial agreements that Susman proposes to opposing counsel. In light of the incredible cost of pre-production review of e-discovery, one of the most significant may be the "5 x 5" proposal:
"Each side must initially produce electronically stored information from the files of 5 custodians selected by the other side during an agreed period of time. Only documents which have a lawyer's name on them can be withheld from production and only if they are in fact privileged. Production does not waive any privilege and documents can be snapped back whenever the producing party recognizes they are privileged. After analyzing the initial production, each side can request electronic files from 5 other custodians. Beyond that, good cause must be demonstrated."