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.
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.
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.