eDiscovery Best Practices: Tips for Saving Money in Litigation
April 05, 2012
A recent article on The National Law Journal (entitled Top 12 tips for saving money in litigation, authored by Damon W.D. Wright) had some good tips for – you guessed it – saving money during litigation. I thought it would be worth discussing some of these, especially those that relate to eDiscovery cost savings practices.
- Conduct targeted preservation and collection: As the author notes, the duty to preserve is “not supposed to cause business operations to grind to a halt” and “the focus should be on the specific subject matter, evidence and likely witnesses in the case”. If you promptly investigate and quickly identify those likely custodians and act to preserve their data, you’re probably satisfying your duty to preserve. Just don’t lose sight of organization-wide processes that affect those likely witnesses, such as automated deletion policies, and suspend them for those witnesses, at least. Don’t make the same mistake that EchoStar did.
- Calibrate the budget to the amount and importance of the case: Ralph Losey, in his interview with eDiscovery Daily, spoke about bottom line proportional review and the idea of setting a budget based on the size and potential exposure of each case. It simply doesn’t make sense to spend the same amount of effort in routine cases as it does for the “bet your company on the outcome” cases.
- File in a fast-moving court: Or pursue transfer if you’re the defendant. Certainly, the longer a case drags out, the more expensive it is, and that includes for eDiscovery.
- Know the court: The author addresses this from a general perspective, but it could be important from an eDiscovery perspective, as a part of that. Enough case law related to eDiscovery exists now that many judges have started to establish at least some track record with regard to issues such as spoliation, proportionality and sharing of eDiscovery costs. It’s important to know how your judge views those issues.
- Have a key client liaison: Nobody knows the client better than the client themselves, so identifying the right person to serve as a liaison between the client and counsel can not only improve communications, but also streamline process and save costs. As the author noted, the ideal client liaison will “know the organization well and have the authority, perseverance and communication skill needed to get the attention of others.”
- Select vendors and experts with care: The author notes that “you should always obtain price estimates (comparing ‘apples to apples’)” when considering eDiscovery vendors. As a part of that, it’s important to make sure those comparisons are truly “apples to apples” and comprehensive. Are per GB processing charges for the original (compressed) GB size or expanded? Do hosting charges include per user fees or other ancillary charges or are they strictly per GB? It’s important to make sure those distinctions are clear when comparing.
- Try to get along with opposing counsel: While some are easier to get along with than others, the ability to cooperate with opposing counsel and discuss various discovery issues in the Fed.R.Civ.P. 26(f) conference (such as limits to discovery, form of production, privilege, etc.) will save considerable costs up front if the parties can agree.
- Allow opposing counsel to inspect and copy documents at their expense: Although most collections are predominantly in electronic form, there are still paper documents to be addressed and if you can make a non-privileged collection available for them to go through and select and copy the documents they want, that saves on your production costs.
- Limit e-mail production by custodians, search terms and date range: As the author noted and eDiscovery Daily previously noted, it’s not only a good idea for producing parties to limit production scope, but model orders to limit scope in patent cases are now being adopted in various jurisdictions, including Texas.
- Seek agreement on a narrowed privilege log and a no-waiver order: If you’re successful in #7 above, this should be part of what you try to negotiate. It helps if both parties have similar concerns regarding the effort and cost to determine privilege and prepare a privilege log.
- Pursue cost-shifting for discovery: As yesterday’s post reflects, courts are more often expecting requesting parties to share in the discovery costs when the requests for information result in an undue burden or cost for the producing party. And, as the author noted, the model order establishes specific parameters for patent cases and the expectation for requesting parties to pay for additional discovery.
- Stipulate to facts not in dispute: Why conduct discovery on facts not in dispute? The author’s recommendation for early stipulations is a great idea for eliminating discovery in areas where it’s not necessary.
So, what do you think? Did you get some good ideas? Please share any comments you might have or if you’d like to know more about a particular topic.
eDiscovery Daily will resume with new posts on Tuesday after the Easter holiday. Have an eggs-cellent weekend!
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.