IndyBar: Professional and Technical Civility in Electronic Discovery — Five Tips on How to Avoid a “Discovery War”

By Jason Mizzell, Kroger Gardis & Regas

Electronic discovery — like discovery generally — can bring out the best and the worst in lawyers. A process that is supposed to be about each side peacefully and politely exchanging documents and information so that their dispute can be fairly litigated is rarely genial. Combine the normal levels of discovery angst with the added technical stress of handling large volumes of emails, spreadsheets and PDFs, and it’s enough to turn any discovery dispute into a full-blown “discovery war.”

But it doesn’t have to be this way! It’s possible to navigate the process in an amicable manner without losing sight of your client’s needs. Here are five suggestions for promoting professional and technical civility in the e-discovery process:

1. Understand the level of tech literacy on each side. The level of tech literacy among attorneys on each side in litigation can vary from an attorney barely able to type without pecking the keys, to a group of sophisticated, code-literate, technocrats. It’s important to understand exactly what kind of tech literacy you are dealing with. You need to know if you’re going to have to explain the concept of a load file and preservation of metadata (don’t be pedantic — see number five below) or if you can just skip right to a joint ESI agreement.

a. More importantly, know your own level of tech literacy! Don’t assume because you used Summation once or saw someone else tag something as responsive in Relativity that you are familiar with every aspect of the e-discovery process. Be prepared to be humbled. We all learn new things in every case.

2. Cooperate early, cooperate often. Before you get too deep into the weeds, talk early and often about agreeing to the format of electronic discovery. Are you going to ask for all metadata to be turned over? Is your case small enough that you need only exchange Bates labeled PDFs? What kind of expectations does each side have? Can you prepare a joint list of search terms to make your lives easier?

a. Early cooperation results in faster, more efficient and cheaper e-discovery in virtually every case. Start this conversation at the same time you send your requests for production: don’t wait until you’re in a hearing on a motion to compel discovery.

3. Protect your client’s interests but be practical. Cooperation is not surrender. Similarly, protecting your client’s interests does not require that you go to war. Instead of looking for a reason to fight, look for common ground. For example: if opposing counsel conducts a search of their client’s email and comes back to you with 500GB of data, you may want to discuss ways to narrow that down: no one really wants to look through 500GB of emails and rare is the case in which all 500GB of email would be relevant.

a. But winnowing that pile doesn’t just mean demanding that opposing counsel comes up with new search terms. It may also include narrowing your requests for production to more relevant items. No one likes requests for production that ask for “all documents ever in existence that might possibly relate to this case.” No one likes interrogatories that ask a party to “identify and describe all documents and communications that may be remotely related to this case.” This is especially important in e-discovery given the sheer volume of emails that can be saved and searched. Now more than ever it is essential to focus on what you need for your case.

4. If you don’t know what you’re doing, ask for help. There is never any shame in admitting that you have no clue what a file is or what it does. There is no shame in admitting that you don’t understand ESI, metadata or load files. Seek help from others if you’re lost.

5. Cultivate a positive relationship with opposing counsel — even if your clients hate one another. This is the single most important thing that any of us can understand. It applies universally to discovery, e-discovery and litigation generally; almost every aspect of being an attorney and really just life itself. And it’s such an obvious concept that unfortunately, too many attorneys ignore. To sum it up: don’t be a jerk.

Zealously advocating for your client’s rights does not mean that you need to be a jerk to opposing counsel. Indeed, being a jerk to opposing counsel oftentimes actively harms your client’s interests.

In litigation, it’s quite common and understandable that opposing parties are unhappy and upset with each other. There is no reason to hide this antipathy; it’s part and parcel of litigation. But maintaining a good working relationship with opposing counsel is essential.•

This article was originally published on the E-Discovery, Information Governance & Cybersecurity Section page. To see more from the section, visit indybar.org/edisc.

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