As we approach the fifth anniversary of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, the words “electronic discovery” still inspire 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, in-house counsel must ask, when is retaining an e-discovery consultant 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 team of in-house attorneys, IT managers and retained counsel, 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, form a critical part of your defense against an aggressive e-discovery adversary, and is an essential team member when your company wants to go on the e-discovery offensive.
First, you should consider retaining an e-discovery consultant whenever your company is facing novel or complex litigation. Any litigation that involves data systems or company business units that have not previously been the subject of extensive e-discovery presents substantial risk of e-discovery errors. Every division in your company has its own data management and communications culture, and no matter how aggressively your company engages in top-down management of ESI systems, each business unit will include some data custodians who have devised some way to “work-around” your company’s 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 also 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 to avert an e-discovery disaster. Of course, some matters may require the assistance of an e-discovery consultant simply because the scope of a collection would overwhelm the resources of your existing team. If managing the collection prevents your IT department from supporting the company’s business and your outside counsel from focusing on winning the case, then it is certainly time to retain an outside consultant to help plan the collection and review and assist with at least some of the heavy lifting.
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 your company's adherence to e-discovery best practices in the litigation, 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.
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 is a fabrication. 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.
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.
This article is the first in a series from this author to address working with e-discovery consultants. Next month, I will address how to select and engage an e-discovery consultant to maximize the consultant’s efficiency and effectiveness.