In previous columns, I have briefly discussed the importance of retaining an ESI consultant who can testify as an expert witness. In this column, I take a closer look at this often overlooked role.
It is a mistake to think of your e-discovery consultant simply as a vendor. Unless 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 company has complied with its e-discovery obligations can be just as important as trial counsel’s brilliant cross of plaintiff’s key witness or your toxicology expert’s devastating critique of plaintiff’s theory of causation.
The role of expert witnesses in the forensic analysis of electronic media is by now quite familiar to most litigators, but the e-discovery consultant offers a very different expertise. Instead of testimony regarding the recovery of files from unallocated space or evidence of unauthorized copying or downloading of data, 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 company’s e-discovery is under attack, the most effective voice in the courtroom will be an e-discovery expert. An expert can attest to the sufficiency of your company’s e-discovery because he personally participated in the planning and management of the electronic discovery, and has the professional experience and credentials to persuasively and accurately explain how the company has met best practices.
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 use the same degree of care when selecting an e-discovery consultant that you would use when selecting a testifying expert for litigation.
Cost-conscious in-house counsel may balk at the potential expense any expert with the skills necessary to be a good testifier will be expensive — but careful management of the engagement can limit this professional’s role to those specific functions where 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 own in-house resources to leverage 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 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 her attention additional issues as they arise is critical to the success of the engagement.
Retained counsel may resist this heightened role for the e-discovery consultant because it is trial counsel who bears ultimate responsibility as an officer of the court to provide careful oversight and management of the client’s discovery. 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) deposition 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 determine that trial counsel lacks integrity.
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 materially impact the court’s perception of the party and may continue throughout the litigation.