This article is the second installment in a series on e-discovery issues impacting inside counsel and areas that offer the greatest opportunity to reduce risks and save costs. This column looks at the advantages of conferring with opposing counsel.
They were seemingly minor amendments. In 2006, Federal Rule of Civil Procedure 26(f) was modified to require that, at the initial conference that takes place early in federal litigation, parties must “discuss any issues about preserving discoverable information” and then must report to the court via a discovery plan “any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.” Since then, many states also have required or encouraged similar early discussions, like Florida’s pending state rule requiring e-discovery issues to be raised at a preliminary scheduling conference.
Regrettably, many parties don’t appreciate how these seemingly minor provisions can be an enormous benefit in terms of reducing both cost and risk.
All too often parties half-heartedly comply with these rules through boilerplates, telling the court things like they “don’t anticipate any issues relating to disclosure or discovery of electronically stored information, and shall raise any such issues if and when they arise.” These types of statements not only demonstrate a lack of preparation, but forgo a rare opportunity.
The drafters understood that many of the most significant early e-discovery sanction cases involved problems that occurred at or near the time of trial. As the committee notes to the amendments state: “failure to address preservation issues early in the litigation increases uncertainty and raises a risk of disputes.”
If, on the other hand, a party clearly provides the other side with information such as the names of key players whose data will be preserved, the date ranges of preservation and whether or not backup tapes or legacy systems will be preserved and searched, the onus will shift to the other side to object if they find that deficient. Absent a negotiated solution, parties can then ask the court to resolve the issues before the horse leaves the barn. That’s what the drafters intended.
As the rule states, this is also the time for the data-laden party to secure agreement on the form or forms of production. Depending on the case, the form of production can be native electronic files (e.g., a Word document in Word format), static images (like TIFF files that don’t include hidden data) or even paper.
But native files are difficult to manage and review. Thus, to reduce burden and risk I often insist on producing electronic information in static form that can be branded with Bates numbers and eliminates having to ferret out hidden information from native files. To deflate any objection, however, I will also agree to preserve the native version and produce it later if the other party can show it is somehow important.
The key to these early communications is the unwritten and often unnoticed corollary, that such transparency will go a long way to demonstrate both that the producing party acted reasonably and that the complaining party waived any such claim in the event it attempts to assert (sometimes years later) that something more should have been done. Of course, parties who simply agree that they don’t “anticipate” e-discovery issues don’t have this option.
Thus, even if an initial conference is not required by rule, parties with substantial data troves who spell out early on exactly what is being done on the e-discovery front can greatly reduce cost and risk. Doing so will usually reduce the amount of data necessary for you to collect, preserve, process and review. It will allow opportunity for agreements to produce in the most cost-effective manner. And it can block later claims that you didn’t do enough.
Thus, inside counsel should do everything possible to arm their trial lawyers with the necessary information and encourage them to use it at the outset of litigation.