E-Discovery: When your e-discovery consultant becomes a testifying witness

E-discovery consultants offer significantly different expertise from other types of expert witnesses.

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.

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.


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Matthew Prewitt

Matthew Prewitt is a partner in the Chicago office of Schiff Hardin, where he concentrates in complex litigation and also co-chairs the firm's Trade Secrets Client Services...

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