The elephant in the room regarding electronic discovery is that the expense is high and difficult for the average litigant to afford. Moreover, there seems to be a disconnect between the practical realities of everyday litigation and the more high-powered, high stakes world that drives the development of e-discovery as a discipline. For many attorneys in the trenches, a client’s budget leaves little room for reliance on IT consultants, e-discovery review platforms, or in-house counsel (who, for the majority of small businesses, does not exist). Often, litigation counsel is the only individual in the client’s orbit able to handle the preservation, collection, processing, review and production of electronically stored information (ESI). This means that many lawyers must be ready to be self-sufficient when it comes to e-discovery. Fortunately, there are solutions that can make all the difference in cases which, though having a lower amount in controversy, are no less valuable to the parties involved.
First, it is axiomatic that the most critical evidence in contemporary discovery is email, which, on occasion, can be difficult to collect and produce without the aid of an IT professional. Production of emails in static form (i.e., in Adobe PDF) is unlikely to be acceptable if an opposing party has requested native format with accompanying metadata. As such, in smaller matters there is often little choice but for an attorney to harvest client emails directly, review them for responsiveness and privilege, and prepare them for production. While this is far from ideal when seen through the lens of forensic fidelity, for many litigants—especially in state court—it is either that or bust.
It is also not uncommon for individual parties or small businesses to use email platforms that are inconvenient for e-discovery. Indeed, many clients prefer to use third-party webmail services through Gmail, Yahoo or AOL, leaving an attorney the task of processing the emails outward from those platforms. A straightforward solution is for a party to export their email accounts to Microsoft Outlook, create a subfolder for responsive emails, and then create a .PST file for their attorney to load and review. That, of course, requires a more tech savvy client (and lawyer), and it is more likely that the attorney will either have to walk a party through the exportation process or offer an even simpler solution.
In the smallest of cases, some law firms are currently using quarantined e-discovery email addresses as repositories for client emails. A law firm sets up an email account (i.e., e-discovery@[name of firm].com) solely for the purpose of receiving responsive emails forwarded by the client, which counsel then reviews and prepares for production. However, the key for using email repositories is to obtain the agreement of opposing counsel prior to their use. An agreement avoids a challenge to the defensibility of the process, and it should be easy to acquire so long as the receiving party reserves the right to ask for the pure native of any particular email that may be of interest. Of course, there would still be a need to provide Bates labels for any digital collections produced, but same can be accomplished by providing a static production of emails and their attachments in PDF format. Additionally, given that the most important metadata relating to emails is on the face of the document (subject, time/date sent, recipients), it should be acceptable to opposing counsel for the titles of Outlook .MSG files to be changed to the appropriate Bates label (so as to coincide easily with the static production).
Another strategy for e-discovery in smaller cases is to embed unilateral e-discovery protocols in requests for production that contain thresholds for ESI. A formal protocol is prepared and embedded into the request, asking for a particular form of production (i.e., in native format, TIFF, etc.). However, an instruction is also provided outlining that production in digital form is only required if the production surpasses a specific volume. If the universe of responsive documents is below whatever threshold is set (for instance, less than two thousand documents), the producing party may provide discovery in static form so long as the requesting litigant reserves the right to seek any native files for key documents. While this tactic is by no means preferable to a formally negotiated ESI protocol between all parties, it is a shortcut in matters where only one side is versed in e-discovery practice, and it can curtail costs while preventing a waiver of the right to seek electronic files.
Although there are any number of tips and strategies for e-discovery in smaller matters, the critical point is one of perspective. E-discovery is not defined by a one-size-fits-all mentality, and while certain tools—such as predictive coding—are certainly intended for larger cases, an attorney versed on the topic can bring unique solutions to any lawsuit, big or small.
Robert R. Jimenez is an associate with the law firm of Espinosa Martinez in Miami. He focuses on intellectual property litigation and e-discovery. Contact him at firstname.lastname@example.org.