Discovery costs are often the single greatest expense in litigation, particularly when the total impact, including the opportunity cost of employees identifying discoverable documents instead of performing their jobs, is considered. This column focuses on how to intelligently manage discovery during litigation, building upon the lessons from previous columns.
The fundamental discovery task for the producing party is locating potentially responsive documents and materials, whether in the form of electronically stored information (ESI), paper or other media such as microfiche. The bygone days in which rooms of young associates manually reviewed each page of paper documents are never to return. The dramatic increase of ESI within the last decade has both aided and hindered the search for relevant information.
On one hand, the intrinsic computerized searchability of ESI greatly facilitates identification of individual documents containing specific keywords of interest. At the same time, the sheer volume of ESI requires careful selection of keywords to minimize false positives, and more importantly, to ensure that relevant information is not inadvertently missed.
Inside counsel should be integrally involved in choosing keywords and verifying the accuracy of searches. It is now common to request keywords from the adversary seeking discovery and to perform several iterations, each time refining and narrowing the search.
Another way in which discovery can be made significantly less expensive is by agreeing with the requesting party to limit the categories of discoverable information. In some cases, email might be highly relevant, but more commonly its production is a useless but costly exercise. Email also can be limited by topic and custodian to reduce expense. Avoiding production of marginally relevant materials by agreement reduces costs for all parties.
The format in which ESI is produced can result in additional cost savings. It is neither necessary nor efficient to “blow out” large electronic documents, such as spreadsheets, into thousands of TIFF images or PDFs; in such cases it might be more sensible to produce in native format.
The sea change in the way documents are reviewed prior to production has given rise to new concerns related to waiver of the attorney-client privilege by inadvertent disclosure. Previously, the review for relevance and privilege were combined, and inadvertent production of privileged documents rarely occurred. Today, very few, if any, of the company’s documents will be reviewed manually by attorneys or paralegals, necessitating negotiated “claw back” or “quick peek” agreements to avoid privilege waiver. Because such agreements are generally only effective as to the parties signing them, the current trend in federal litigation is to rely instead on a “non-waiver” court order, which then precludes waiver due to inadvertent production in any other state or federal proceeding.
Every case is unique, but the guidelines presented in this column can be applied to every case to make discovery more cost-effective.