10 Questions to Ask Your Outside Counsel (e-Discovery Edition) – Part 2
In our last post in this e-discovery blog series, we discussed the first five questions you should ask outside counsel as part of their case pitch process to help you identify which firms are truly best prepared to run your discovery work efficiently and cost effectively. In this post, we follow up with the second five questions to ask.
These questions are designed to dive deeply into issues specific to how the forum where your case is pending (state or federal) impacts the discovery burden. Let’s jump back in…
Question 6: How Does This Jurisdiction Or Tribunal View The Proportionality Standard Found In Rule 26 Of The Federal Rules Of Civil Procedure (Or Its State Court Equivalent)?
Why it matters: E-discovery can be costly. Even the simplest of discovery requests from an opposing party can turn into expensive and involved forays into an organization’s data storage vaults and computer networks.
Prior to the 2015 Amendments to the Federal Rules of Civil Procedure, parties had relatively few tools to push back against the burden of electronic discovery. But the 2015 Amendments included a legal lifeline to parties to escape the heavy weight of unrestricted and far-reaching discovery requests by including language requiring that the scope of discovery be “proportional to the needs of the case.”
The Rule 26 proportionality standard has provided parties with a powerful tool to resist unreasonably expansive (and expensive) discovery requests in certain circumstances. But this new standard did not—nor, practically, could not—spell out with specificity the scenarios that might result in a discovery request being disproportionate to the needs of the case.
We see the same issue in state court jurisdictions that have adopted a proportionality test. The interpretation of this amendment (or state court equivalent) in the relevant case law can have an enormous impact on cost and discovery strategy.
Test your outside counsel at the outset to determine their strategies on this issue. Ensuring that your outside counsel can explain what the court in the jurisdiction where your case is pending has to say about this issue is critical.
Question 7: What Does This Jurisdiction Or Tribunal Say About Discoverability Of (And Duty To Preserve) Data From Cell Phones And Other Hand-Held Devices?
Why it matters: This is an area of discovery with no uniformity but a large impact on cost. Must you preserve the digital contents of cell phones and other hand-held devices? In certain jurisdictions, the answer may depend on whether the hand-held devices are owned by the employees rather than the employer, or whether there is a policy in place regarding data on these devices—whether materials on these devices properly could be construed as in your “possession, custody, or control.”
Whether hand-held device information must be preserved is a critical question that should be thoughtfully addressed at the beginning of a case, particularly because many employees treat data on their phones differently than they treat data on their work computers. You do not want to find yourself in a discovery dispute, trying to get your arms around what does (or now does not) exist on employee devices only after a court has ordered you to produce it.
Question 8: What Does This Jurisdiction Or Tribunal Say About Standard Electronically Stored Information (“ESI”) Protocols?
Why it matters: Generally speaking, an ESI protocol is a document, usually prepared with the input of all the parties to a dispute, that outlines how electronically stored information will be collected and produced in the case. The ESI protocols in effect in a case will shape much of your electronic discovery.
Does the court mandate a limited number of custodians from whom documents can be collected? Are there restrictions on the number of keyword search terms that can be run across the data to find potentially relevant documents? Some courts do impose such limitations and restrictions. If the court does in your case, it will impact your strategy and the cost.
Does the court mandate production of certain metadata? Whether it does so or not will impact your ability to effectively search your opponents’ data, which, among other things, will help reduce cost and assist your case strategy. Get a good handle on—and test your proposed outside counsel’s knowledge of—the ESI protocols that might apply in your case.
Question 9: What Does This Jurisdiction Or Tribunal Say About Attorney-Client And Work Product Privilege?
Why it matters: Privilege is critical. And while basic rules of the road are generally uniform across jurisdictions in the United States, a number of important questions can be answered in different ways depending on the jurisdiction.
For instance: what rules govern privilege in the first instance? What additional privileges beyond work product and attorney-client privileges, if any (such as spousal communication privilege, doctor-patient privilege, accountant-client privilege, or joint defense privilege), are recognized in the jurisdiction? What is needed to make a prima facie case of privilege on a privilege log in the jurisdiction?
What are the “claw back” rules for pulling back inadvertently produced privileged documents? Does the court encourage parties to agree to an order based on Federal Rule of Evidence 502(d) (or a state court equivalent), which prevents parties from using inadvertently disclosed privileged documents in any other legal proceedings? What rules govern challenges to privilege assertions or redactions on documents?
Misunderstanding the rules around privilege in the jurisdiction where your case is pending, or not having a solid grasp at the outset (before privilege calls are made and logs are created) will increase costs and the likelihood of mishandling privileged information. This can be devastating to your company and your case. Be sure to ask outside counsel about the rules in the relevant jurisdiction.
Question 10: What Does This Jurisdiction Or Tribunal Say About Technology-Assisted Review (“TAR”)?
Why it matters: Technology-assisted review is the use of artificial intelligence to analyze and apply predictive coding to some or all of the data collected in a case and thereby help identify responsive documents. Whether substituting for a large team of human reviewers or working as a supplement to a review team, TAR can be a powerful tool for handling massive numbers of documents in a review.
While more and more courts are finding that TAR can be a sufficient means to review and produce documents, many have not yet expressly affirmed TAR as a viable option for e-discovery use. Further, what is considered a reasonable TAR process can vary widely by jurisdiction. It is important that your outside counsel understands whether and how TAR may be used in your matter.
Law firm pitches are the time to decide who will represent you in the case. Focusing on the team’s ability to lead on the merits of the case is critical. But it’s only one piece of the puzzle. Don’t forget to focus on the management of the discovery process and its impact on reducing costs or getting to a winning resolution of the matter. It typically is not a key focus of an outside counsel case pitch, but it should be. Because discovery accounts for the vast majority of spend on any given matter, the importance of a diligent and organized discovery process, led by experienced and efficient attorneys, cannot be understated. Whether the outside firm handles discovery on their own, or partners with discovery counsel, this is one area you must get right.
If you have any questions about this post or any in the series, or if we can help with an upcoming review or discovery project, please contact us via firstname.lastname@example.org.