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E-Discovery: Waging a strong e-discovery offense

E-discovery consultants can help companies go on the offensive.

In last month’s column, we considered the role of your company’s e-discovery consultant as a testifying expert witness when the sufficiency of your company’s e-discovery preservation, collection or production comes under attack. This month, we consider the role of the e-discovery consultant when your company goes on the e-discovery offensive.

First, waging an aggressive e-discovery offense requires having confidence that your company’s own e-discovery is defensible. I regularly encounter trial counsel who never press opposing counsel to correct deficiencies in their e-discovery because they are uncertain whether their production of electronically stored information will survive scrutiny. The result is a tacit agreement between opposing trial counsel that neither side will press e-discovery issues, an approach that invites sharp practice by your company’s adversary and silently decides important tactical questions without any input from the client.

Indeed, in-house counsel sometimes is complicit in this silent e-discovery truce, breathing a sigh of relief that retained counsel has managed to complete discovery without either side ever raising hard questions about e-discovery. In reality, this easy path may deprive your company of critical evidence that could change the outcome of the case. As in-house counsel, you should demand your retained counsel work with you to engage a consultant who can help put your company’s e-discovery in good order and empower your company to go on the e-discovery offensive.

Because of the frequent high-stakes battles over e-discovery sanctions, too many attorneys equate an aggressive e-discovery strategy with posturing the case for a potentially dispositive sanctions motion. In most cases, however, your company’s primary e-discovery objective should be the tried and true strategy of obtaining evidence in your adversary’s possession that will help win your case. Counsel who are angling for an e-discovery sanctions battle may miss valuable opportunities to win the case the old-fashioned way: proving the merits of the client’s claims and defenses.

In my experience, the party who commences discovery with the assistance of a capable e-discovery consultant can achieve a significant tactical advantage by including the consultant in early discussions with opposing counsel. Particularly in the early stages of discovery, it is still common to encounter counsel with limited e-discovery experience and resources. If your company’s retained counsel have a good working relationship with your e-discovery consultant, they can make a formidable team in discovery conferences with opposing counsel who lack similar resources. By maintaining a friendly and constructive demeanor, your trial counsel and retained consultant may readily induce opposing counsel to rely on their technical advice and insights when negotiating the parameters of your adversary’s preservation, search and production protocols.

Some trial counsel may resist giving opposing counsel the benefits of your retained consultant’s technical insights. From one perspective, your company is subsidizing your adversary’s discovery by making available your retained consultant to answer opposing counsel’s questions about the selection of search protocols and production format. In addition, you may be rescuing opposing counsel from errors that might otherwise result in an expensive and embarrassing sanctions motion.

However, if your company’s primary objective is simply to obtain a full and fair disclosure of the relevant evidence in your adversary’s possession, the benefits can be enormous. The federal rules and most state court civil practice rules contemplate some degree of cooperation with opposing counsel in discovery, and modern civil discovery is premised on the notion that the interests of all parties are best served by avoiding discovery disputes where possible and cooperating to ensure reasonably complete disclosure. Litigants who approach e-discovery spoiling aggressively may sometimes be too clever for their own good.

Of course, your company will also encounter adversaries who have the expertise and resources to meet their e-discovery obligations but are simply attempting to game the discovery process. When doing battle with such unscrupulous opponents, an articulate and knowledgeable e-discovery consultant who participates on your company’s is a strong deterrent. Opposing counsel will quickly realize they cannot use negotiations over search parameters and production specifications to obstruct disclosure of the “hot” electronic documents.

In short, I share the view expressed by many that there are too many sanctions motions arising from e-discovery and the awarding of significant and potentially dispositive sanctions for e-discovery violations is encouraging unnecessary and distracting motion practice. In most cases, going on the e-discovery offensive should mean only that your counsel and consultant are asking hard questions in discovery conferences with your company’s adversary and demanding a reasonably complete production.

However, there are still some cases where it is essential to seek relief from the court. When it is time for your company to bring a motion to compel or to seek sanctions, your e-discovery consultant is an essential part of the team. As we discussed in last month’s column, e-discovery disputes often present complex technical issues exceeding the professional competence of trial counsel. An affidavit from your company’s e-discovery consultant explaining why your adversary’s production is deficient may be far more persuasive to the court than a brief submitted by counsel, and simply having the consultant present in the courtroom to address questions during argument on a discovery motion, even if the consultant never actually takes the stand, can add credibility to your company’s position. Of course, placing the consultant in the line of fire also requires a high level of confidence in your consultant’s ability to handle the pressure.

As should be clear from this and previous columns, I am firmly of the view that effective pretrial litigation in complex civil actions requires the company’s e-discovery consultant take a more visible role in communicating with both opposing counsel and the court to resolve discovery disputes. I hold this view because I believe many e-discovery disputes are ultimately over technology that counsel are simply not qualified to address. When an attorney addresses the accuracy of a particular search methodology or the feasibility of retrieving data from a particular source, the attorney steps out of the role of advocate and assumes the role of expert. Even if the attorney is a subject matter expert and is not simply parroting concepts borrowed from the real experts, our profession’s delineation of the respective roles of advocate and witness does not readily accommodate the advocate who would address the court based on his or her own expertise in complex technical matters.

Although some commentators suggest we are moving toward a standardized set of generally accepted e-discovery best practices that may be applied routinely by the court and counsel, in my experience, the rapid evolution of the modes of digital communication and data storage and the e-discovery technologies designed to address them defy any attempt to reduce these complex technical issues to a single set of uniform rules. Certainly the courts may reach agreement on broad principles, but new systems and platforms and new e-discovery tools will impede any attempt to standardize e-discovery for the foreseeable future and will continue to present novel questions requiring the expertise of professional e-discovery consultants.

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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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