By Mike Hamilton, J.D.
Reduce, minimize, trim, cut – use any adjective you want. Corporate legal teams are still searching for the right equation to contain e-discovery costs. Predictive coding and computer assisted review have garnered a lot attention as the newest, best technology for reducing e-discovery costs. What’s getting lost in the mix, and somewhat overshadowed by the Da Silva Moore hoopla, are the front-end technologies and steps legal teams can leverage at the outset of a case to reduce costs, before data collection, processing and review.
Imagine e-discovery evidence in terms of a funnel in which data filters through and volumes decrease as legal teams learn more about their case. Usually, when attorneys start investigating a claim the volumes of potentially relevant data that need to be searched will be at their highest. But as attorneys learn more about the case, they can narrow down data sets based on early analysis of key facts, such as scoping down to the relevant search terms, time frames and custodians. In most cases, organizations possess a tremendous opportunity (that many don’t realize) to reduce the amount of data actually collected and filtered through the funnel early on in a matter, in turn saving their client or company a tremendous amount of money (and time) in later e-discovery stages.
The 2006 amendments to the Federal Rules of Civil Procedure (FRCP) empowered legal teams to proactively narrow the preservation and collection funnel through (1) proportionality defenses and (2) promoting cooperation early in the discovery cycle, enabling in theory for cases to be tried on their merits and not on whether a party can afford e-discovery. The FRCP amendments promoted cooperation by adopting Rule 26(f) “meet & confer” conferences mandating that parties “discuss any issues about preserving discoverable information; and develop a proposed discovery plan” at a time “as soon as practicable—and in any event at least 21 days before a scheduling conference.”
Parties, especially defendants, must remember one of the first ways to minimize e-discovery costs is to utilize the meet & confer process to limit any over burdensome e-discovery requests from the opposing side. EEOC v. McCormick & Schmick’s Seafood Restaurants, Inc. (D. Md. Feb. 3, 2012), provides an excellent example of how courts will push parties to cooperate and generally support narrower e-discovery parameters.
In this employment discrimination case, the Equal Employment Opportunity Commission (EEOC) motioned to compel production of hundreds of thousands of emails when the two sides could not agree on discovery production parameters. In response, the defendants, McCormick & Schmick, objected to the production request claiming it was unduly burdensome and broad. The court ordered both parties to meet and confer in order to formulate search terms that created reasonable production requests. The judge went on to note that utilizing search terms to limit the scope of discovery along with discussing potential e-discovery issues between opposing sides is imperative to defining reasonable discovery parameters.
“Common practice governing the discovery of electronically stored information requires the use of search terms to make an extraordinarily burdensome search comply with the tenets of FRCP 26(b)(2)(c). If the producing party generates search terms on its own, the inevitable result will be complaints that the search terms were inadequate.”
As evidenced in EEOC, courts will always encourage parties to engage with one another in a cooperative fashion, but they also won’t hesitate to reject a requesting party’s attempts to pursue an overly burdensome e-discovery production request. As the court stated above, formulation of search terms that create proportional, reasonable e-discovery parameters is essential under the FRCP. The judicial embrace of proportionality has incentivized parties, especially the producing ones, to generate e-discovery metrics prior to meet and confer that back up their arguments for a narrower scope of e-discovery. Parties can achieve this by employing advanced technologies, such as in-place early case assessment and advanced analytics, to quickly search their own databases and develop defensible data culling processes that identify sufficient, but not over inclusive search terms that comply with the cost-benefit, proportionality test under FRCP 26(b)(2)(c).
By going through these steps, parties will have the necessary evidence to prove to the court that a production request is overly burdensome. Analyzing and culling the data before meet and confer (and prior to collection) offers a proactive, smart approach, to minimize, cut, trim, reduce e-discovery costs, thus making the review process much easier and efficient to manage downstream.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.