This is the first in a series of articles that will cover the different phases of e-discovery.

“If I had only one hour to save the world, I would spend 55 minutes defining the problem, and only five minutes finding the solution.” ~ Albert Einstein

Einstein made a great point, one that applies strongly to electronically stored information (ESI) discovery. But even before defining an ESI problem, the first step in most models for ESI discovery is some kind of identification effort. For many companies, a comprehensive account of potential ESI is likely to reveal some frightfully expensive outcomes for the day discovery requests arrive from the opponent. The instinctive reaction to a complaint that promises discovery reaching the farthest corners of the company’s computerized infrastructure is a natural “push back” reaction. Surely, if the opponent senses that there is a rich store of information behind the wall, the assault will only be more intense.

This initial reaction may be counterproductive to the current trend in ESI discovery. Courts are increasingly focused on the high cost of perfect ESI production for low marginal benefit. But to weigh the competing interests in a proposed ESI discovery approach, the bench needs to know what the outer limits are if the requesting party was actually awarded access to all of the ESI in the respondent’s possession. If the contours of the ESI problem are not defined early on, the court cannot step in and cabin the ESI effort to a reasonable scope.

The Sedona Conference, a non-profit institute dedicated to the advanced study of law and policy, issued its Cooperation Proclamation in 2008 declaring that the Federal Rules require discovery cooperation. “The Principles of E-Discovery,” issued by the 7th Circuit Electronic Discovery Pilot project, state, as principle 1.02, that zealous advocacy is not compromised by cooperating on electronic discovery. With so much scholarship urging a collaborative approach, litigants who act cooperatively should not be punished for making transparent and full disclosures.    

ESI identification is prominently featured in the early disclosure requirements of the Federal Rules. Rule 26 requires parties to discuss ESI issues at their first conference, include them in their report to the court and reveal their ESI sources in their initial disclosures. The court also may issue an appropriate case management order:

  • First discovery conference: “In conferring, the parties must … develop a proposed discovery plan. …. A proposed plan must state the parties’ views and proposals on … any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.” Rule 26(f)(3)(C)
  • Initial disclosure: “[A] party must, without awaiting a discovery request, provide … a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Rule 26(a)(1)(A)(ii)  
  • Initial scheduling order: After the Rule 16 pretrial conference, the court must issue a scheduling order which may “provide for disclosure or discovery of electronically stored information.” Rule 16(b)(3)(B)(iii)

The Rules also have been amended to explicitly address the costs of producing marginally relevant ESI. Consider Rule 26(b)(2)(B) (December 2010):

  • “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost … If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.” Rule 26(b)(2)(B)
  • The court must “limit the frequency or extent of discovery otherwise allowed by these rules … if it determines that … the burden or expense of the proposed discovery outweighsits likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Rule 26(b)(2)(C)(iii)

High cost alone can justify limiting discovery under these Rules, a concept of proportionality also endorsed by the 7th Circuit Principles (Principle 1.03). But in order to allow the court to make proportionality findings, you need a record that shows some rationale about why those particularly expensive, yet relevance-poor collections of ESI should not be searched. Before the first conference with the opponent, you need to identify those ESI collections that are good candidates for exclusion altogether. Given the potential expense and lack of trust engendered by late revelations regarding ESI, if you genuinely hope to persuade your opponent and the court that the costs and burden associated with a marginally relevant collection is not worth the effort, you have to thoroughly explain why searching that data is disproportionately costly relative to the benefit of the case.

Accurately identifying your ESI does risk giving your opponent a well defined ESI target to shoot for. But, if you cannot agree early on to leave large, relevance-poor data collections out of the litigation, or at least agree on inexpensive search strategies, your opposing party is not likely to be convinced even after a few rounds of depositions and written discovery reveals them.

It is possible that you will not be able to reach a quick, early resolution on how to handle a particular set of ESI. In that case, you need to assess the other, early stage step in the e-discovery process—preservation. I’ll share a few thoughts on that topic in my next column.