E-Discovery Best Practices

COVID-19 has forced a new way of life upon many of us. Working from home has become our new reality. Although this change has been sudden for many, there are ways to ensure you are productive and remain sane. In this blog, I will offer some best practices that can help make sure the transition is successful.         

Searching is a core e-discovery skill that has been a part of the legal case landscape for about two decades now. Throughout that time, the fundamental capabilities for keyword searching have not changed much. However, my experience has shown that crafting a good, effective search a core e-discovery technical (and artistic!) skill. This blog offers insight into how to do just that.

Generally speaking, the presumption is that third parties will bear at least some of the costs of complying with proper subpoenas. That said, Courts often expect that a requesting party will negotiate in good faith the costs of compliance and, if those costs are significant, the requesting party would agree to cover at least some of the costs or limit its requests in light of the requirement of FRCP 45(d)(2)(B)(ii). As demonstrated by a recent case, though FRCP 45 provides two avenues for a third party to recover its costs for responding to a subpoena in federal litigation, such awards are the exception to the rule.

In my role as a Senior E-Discovery Attorney, I often provide guidance to organizations in how to develop and implement policies governing data retention and disposition. When developing those policies, it is critical to consider both the business and legal implications of preserving or deleting data and, ideally, find a balance between the two even when the concerns and priorities may not be the same. A recent case highlights what often proves to be a fundamental tension between the perspective of business stakeholders and legal stakeholders with respect to the preservation of ESI for pending or reasonably anticipated litigation in large corporations.

While the term sounds quite formal, with respect to e-discovery, in practice, “Information Governance” really means getting your electronic house in order so that you can mitigate risks and expenses should e-discovery become an issue in the future. “Getting your electronic house in order” covers the entire data lifecycle, from the initial creation of electronically stored information (“ESI”) through its final disposition, and potentially involves an organization’s entire suite of technology and related processes, policies and strategies. Indeed, IG becomes the foundation and framework of an organization’s  management of its information assets and, importantly, the degree to which e-discovery processes are streamlined and cost-efficient is dependent upon having effective IG policies and procedures in place.

As you recall, in December of 2015, the amended FRCP 26(b)(1) sought to address the escalating burdens associated with data preservation and production by emphasizing proportionality and defining the scope of discovery. As the latest proportionality rulings show, Rule 26(b)(1) is having an impact on limiting the scope of discovery based on the associated expense and some state courts are even following the federal courts’ lead in enforcing proportionality. Interestingly, while expense continues to be a factor in the proportionality argument, parties’ objections on the basis of proportionality have extended to nonmonetary factors as well, including privacy. As a result, some courts are now recognizing privacy as a consideration in determining whether the discovery sought is proportional to the needs of the case.