Cost Effective Electronic Discovery in Litigation
by Daniel B. Garrie, Esq.
Litigators have an interest in making sure that, despite all the obstacles presented by the American system of justice, the value provided their clients by litigating a dispute exceeds the costs. However, in regards to e-discovery, federal and state codes now require the preservation and production of electronic data in all its various forms, with immense costs. If one is not careful, the costs of electronic discovery alone may well ensure that any victory obtained in the courtroom will be entirely pyrrhic to your client. Yet, failure to reasonably abide by one’s e-discovery obligations may lead to more costs later, in the form of motion practice, additional required discovery, and even possible sanctions.
Several organizations, such as the ACTL and The Sedona Conference are working on developing codes and standards that will bring some order and direction to the e-discovery process. Likewise, the Judicial Conference Committee on Rules of Practice and Procedure are considering changes to the rules of e-discovery that may lighten the litigator’s burden. These proposed fixes, however welcome, address symptoms, not the underlying problem.
It is not novel that wherever there is information that may be relevant to a dispute, the principles of an adversary system of justice require that information be captured, reviewed and produced to the other side. What is new is the rate of technological change in this information age, and the simple fact that companies are generating more information than ever before. Viewed in this way, it seems that the problem of electronic discovery might actually be a symptom of a larger problem of digital information management. Accordingly, the most effective solution is one that addresses the information overload at its source, through a company’s adoption of responsible and effective enterprise information management principles.
Companies adopting technologies that allow them to effectively manage their information so that less is retained, and that which is retained can be seamlessly collected, preserved, and reviewed, are companies that will obtain both a competitive and litigation advantage that could save the company millions in legal and technological costs. Here, the old saying “less is more” holds true, because companies that keep less information have less information to identify, collect, preserve, review, and analyze.
Of course, selecting the right solution and synchronizing the solution with a company’s policies is critical. It requires crossing the gap between the technical jungle and the legal morass to deliver a real solution. Today, organizations seemingly keep information that has no legal, economic or competitive benefit, because the policies they have are not effectuated by the technologies they have acquired.
Large companies have achieved economies of scale by hiring “discovery counsel,” be it an individual dedicated to helping manage the discovery portion of all litigations or outside counsel appointed to serve as National Discovery Counsel. A benefit of retaining such counsel is the company develops a deeper knowledge of the company’s information systems, and that synchronicity between the technology and the law helps lower the company’s legal bill.
** This is an abridged version of the article “Common Cents,” written by Daniel Garrie and published in the Los Angeles Daily Journal.