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.