Cooperation. Collaboration. Transparency. These are not the concepts we think of when discussing our legal system. But when you are dealing with issues involving electronically stored information (ESI), transparency can be a key weapon for companies to save money on their ESI clause.
Transparency is not a novel concept. It is telling your adversary exactly what you have preserved, what you have collected and from whom you have collected it. The federal rules (as amended in 2006) require parties to be transparent. Rule 26a disclosures specifically require parties to identify all potential sources of ESI even if they will not be searched. Unfortunately, this is probably one of the most ignored rules in the federal system. Many lawyers play a game of “chicken,” waiting for the other side to raise the spectre of ESI before they are willing to discuss it. This is the mentality that leads to the numerous sanctions opinions that dominate the ESI landscape.
The point here is not that transparency should be done just to comply with the federal rules. There also is power in transparency. Indeed, there are several reasons why it is a good idea for your case.
1. Transparency allows you to take control of the process. You can’t be proactive unless you get your own “ESI house” in order. It also allows you to be proactive with the court. This defines your obligations early, which can be invaluable in focusing the case on substantive issues, not ESI.
2. Transparency builds credibility with the court. It’s powerful to walk into a Rule 16(b) conference and tell the court that you have completely informed the other side what you have preserved, the information you have collected and from whom you collected it. This also tells the court that you’re interested in making life easier. Transparency can be a great strategy to avoid “discovery about discovery,” which can be a colossal waste of the court’s time and resources (and your client’s).
3. Being transparent is also a good way to be aggressive. Many times, the best offense is a great defense. If you are transparent, you must insist that your adversary is as well, especially at the Rule 26 stage. If your adversary refuses to be equally transparent, that is something that must be brought up to the judge or directed to the court at the Rule 16(b) stage. But you can’t be aggressive, unless you are willing to share, or have already shared, your information with your opponent.
4. Transparency is the mechanism for resolving ESI issues at the beginning of the case. It forces you and your client to figure out early on what your ESI universe is and to develop a specific preservation, collection and production strategy. Once that strategy is in place, the strength of transparency is the message you send to the other side: This is what we’re doing and if you don’t like it, tell the judge. This forces the issue to be raised early, not in the middle of discovery or in the middle of trial.
Now, don’t get me wrong. I’m not advocating that we all hold hands and sing “Kumbaya.” But transparency is a great weapon for fighting the adversary who is looking to make ESI the focus of the case.
Take the right steps for preservation and collection, tell the other side what you did and dare them to come after you. That’s the best way for resolving ESI early so you can focus on the substantive issues of the case and not get bogged down in ESI.