If you attended an e-discovery legal conference recently, you probably noticed a common theme among corporate counsel, litigators and judges: There is an increased focus on bringing the cost of e-discovery into alignment with the stakes of the case.  

Many are concerned that the goal of a “just, speedy and inexpensive determination of every action and proceeding,” referenced in FRCP Rule 1, is eroding. There is even talk of changing the Federal Rules of Civil Procedure again to address the issue. While there may be another rule change in the future, change will take time and will require interpretation. After all, many still struggle to interpret and apply the 2006 Electronic Discovery Amendments.

So what steps should we take to lower the cost of e-discovery in the meantime? For starters, we should follow the rules already in the books.

The view from many at the bar is that the judiciary should provide clarity by consistently and firmly applying FRCP 26(b)(2)(C), which states, “the court must limit the frequency or extent of discovery if it determines that the burden or expense outweighs its likely benefit.” Not unlike practitioners, some judges understand e-discovery better than others and the inconsistent application of this rule in the e-discovery context causes uncertainty. The cost of this uncertainty is over-compliance, which adds to the burden of litigation cost.  

Of course, it is hardly fair to cast blame on the bench, as the bench would have a much easier job if the bar took its obligation outlined in FRCP 26 more seriously. Rule 26(g)(1)(B)(iii) requires attorneys to attest that their discovery request is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” The scope of discovery requested in the heat of litigation and under the banner of zealous advocacy is certainly larger than necessary in some cases.

In the absence of further guidance from the courts or the Federal Rules, what can an attorney do to reduce both cost and the likelihood of a negative outcome?

There is an aspect of e-discovery expense that in-house and outside counsel are well positioned to influence: Take a closer look at the people, process and technology you use to comply with your e-discovery obligations. There is a big cost difference between an e-discovery project that is properly planned and managed and an e-discovery project that is ad hoc and reactionary.

Many lawyers err on the side of preserving, collecting and reviewing too much information because they are concerned with the small (but potentially very bad for practice building) possibility of missing a few relevant, or worse, privileged documents.

Many lawyers also depend on people who are not well-versed in e-discovery law and technology. They use processes that are not adequate to ensure quality, while minimizing cost and using technology that has fallen behind the evolutionary curve.

E-discovery has come a long way in a short time. Some firms and service providers keep up while others still deliver e-discovery services in a way that is “so 2010.” But we are talking about more than just efficiency. A failure to use the right people, process and technology can lead to both higher costs and a negative result.

For example, there have been several recent cases dealing with privilege waiver. In these cases, the party inadvertently produced privileged documents and later attempted to claw them back. The test for whether privilege is waived by inadvertent production is located in FRCP 502(b) and turns on whether the producing party took “reasonable steps to prevent disclosure.” In each of the following cases the court held that privilege was waived because counsel could not show it had taken reasonable steps to prevent inadvertent disclosure of the privileged information.

In Williams v. District of Columbia,[1] the party produced a privileged document and the court determined that the producing party had not taken reasonable steps to prevent the inadvertent disclosure of privileged information because they could not explain to the court their methodology for document review and production. In Thorncreek Apartments III, LLC v. Village of Park Forest,[2] a miscommunication between counsel and the vendor executing the document production resulted in privileged documents being produced. The court held that privilege had been waived because the “procedures for privilege review were completely ineffective.”

Changing the FRCP would not have helped the parties in these cases avoid a bad result or saved them from the cost of litigating privilege waiver. In each of these cases it was a failure to implement and follow the right process that led to the inadvertent production of privileged documents and the court’s subsequent finding of waiver. While the specific lapses in each case differ, the common theme is that there was some contributing factor from technology, process and human error, or a combination of these factors.

Remember that there is no such thing as “e-discovery in a box.” Processes and technology that were only recently best practices are consistently replaced with even better processes that are more defensible and do a better job of integrating technology. Technology continues to evolve and develop in ways that will impact both the types of e-discovery problems we face and the types of solutions we deploy to solve those problems. Software tools  adequate a few years ago are now outdated as new tools and data storage become increasingly complex.

As the challenges and complexity of discovery evolve, it is not enough to rely on vendors, software or processes that may have been sufficient several years ago, but are not up to the task of today’s larger and more complex universe of data.

Also, be sure you have the right people managing your technology and process at both the law firm and vendor level. Consider bringing in separate e-discovery counsel to handle the e-discovery aspects of a matter. Attorneys who do not spend are not focused on e-discovery issues, and may be understandably misled into thinking that all technology is created equal, or that a particular technology or process is sufficient because other law firms are using it, or because they used it successfully in the past.

Rule 26(g)(1)(A) requires attorneys to attest in writing that to the best of their “knowledge, information, and belief formed after reasonable inquiry: with respect to a disclosure, it is complete and correct as of the time it is made.” The attorney is ultimately responsible for the accuracy and defensibility of work-flow, technology and professional support personnel involved in the project.

Processes that utilize the right combination of technology, work-flow and human expertise to reduce the quantity of data that needs to be processed and manually reviewed will reduce both cost and risk throughout the discovery process.

An attorney who understands the discovery process, including basic technology concepts, oversees the fulfillment of duties by qualified subordinates, selects technology that is reliable and defensible, i.e., technology that allows all of the information to be searched, and has implemented a repeatable process with validated reporting is more likely to be deemed to have acted “reasonably” and is more likely to complete the project at a lower cost.

[1] Williams v. District of Columbia, No. 06-02076 (CKK), 2011 WL 3659308 (D.D.C. Aug. 17, 2011).

[2] Thorncreek Apartments III, LLC v. Village of Park Forest, 2011 U.S. Dist. LEXIS 88281 (N.D. Ill. Aug. 9, 2011).