Finding your way through the e-discovery process

Navigating through the ever-changing waters of e-discovery is not only challenging, but can be costly for the novice and uninformed. To help practitioners through the process more efficiently, the New York State Bar Association has published a free online guide for best practices.

“Obviously, e-discovery is such a high-profile issue in litigation because of its potential to drive up costs, essentially being the tail wagging the dog,” said David H. Tennant, a partner at Nixon Peabody LLP, who chairs NYSBA’s Commercial and Federal Litigation Section which produced the guide. “It’s critical to any lawyer practicing today because information is stored digitally and in so many different formats.”

He said because of evolving e-discovery issues and what courts are doing to try to keep track of it, the association decided to offer a guide for practitioners, the first of its kind, to understand their e-discovery obligations and better represent their clients.
E-discovery is the preparation, preservation, collection, processing, review and production of evidence in electronic form for business, regulatory or legal requirements.

What makes it so complicated is that, unlike hard copies, the documents come in many formats including e-mail, texts, social media, electronic notebooks, personal computers and smart phones. Information is also kept by many custodians and when retrieved, needs to be in a useful format.

The publication offers 14 guidelines with easy-to-understand comments on the reasoning behind the suggestions and how to implement them.

Tennant said cooperation is emphasized throughout for parties to determine what information will be produced and narrowing the scope so everyone understands what they are going to get.

“There are all kinds of technical pieces that need to be decided and it’s a whole lot easier if the parties come together,” he said, highlighting Guideline 4: “Counsel should endeavor to make the discovery process more cooperative and collaborative.”

Communication is also important, as pointed out in Guideline 6 which advises requests for electronically stored information should be particular and objections should plainly identify the scope and limitations. Those making requests should avoid unclear ‘boilerplate’ language and, if necessary, meet and confer to resolve any outstanding disputes about the scope of the format of production.

“If you cannot appropriately describe the ESI that you seek when you draft a written request for the production of documents, it is almost always beneficial to pick up the phone and confer with your adversary in an attempt to ascertain what types of ESI the adversary maintains, where the information is located, how it is stored, who the relevant individuals are and any other facts that would assist in specifying the ESI relevant to the claims, causes of action, and defenses in the action,” the guide advises.

Tennant said it is practical advice and sometimes outside of the way of a lawyer’s thinking to deal with an issue.

He advices lawyers to assume the worst in terms of their knowledge of e-discovery and their clients’ knowledge and sophistication; and to ask questions and verify that the process has been done appropriately.

“I think the risk is to defer to clients when it’s really the lawyer’s obligation and it’s really easier for documents stored in electronic form to disappear into the ether and the other side to claim spoliation,” Tennant said. “Look at the rules and follow the best practices in the guide.”

He said that will help avoid negative outcomes, increase efficiency and drive down costs. He said e-discovery is an area of law that can generate costs disproportionate to the matter at stake.

As an example, Tennant said a breach of contract case worth $1 million between two companies with 25 people on either side can end up generating $250,000 in costs to each side alone just to manage, process and review ESI.

There are costs in determining who has the information needed, where it is located and how it will be formatted for the requesting party. Tennant said simple Word documents do not generally present problems, but complications can arise with XI spreadsheets and computer-aided design and proprietary documents.

“I think my iPod can handle 40,000 songs,” he said. “I don’t know what that translates to in terms of pages. It doesn’t take much space in digital form to have a lot of information. The volume can be staggering. That’s the challenge. You have a staggering among of ESI that has to go through review for privilege and relevance. The number gets to a point where the amount of information is driving this juggernaut that is e-discovery.”

Tennant said e-discovery alone, compared to more traditional discovery methods such as interrogation, can cost several thousands of dollars.”

He said the guide will be updated as necessary in the constant changing e-discovery process in which court decisions and new laws may clarify or muddy the waters of the obligations of lawyers.

“I think it’s practical advice that is taking the oftentimes daunting concept of e-discovery and reducing it to discreet guidelines to provide practical information to apply to every step of the e-discovery process,” Tennant said. “For some lawyers, it will be a light bulb of the importance of e-discovery. For all lawyers, it should be … a single, easy-to-read demystifying guide of e-discovery. If they follow these guidelines, the chance of ending up in a bad place is greatly reduced and the chance of substantial costs savings for the client is greatly increased.”

Tennant said Nixon Peabody has created an e-discovery center at its Rochester office for document review which is designed to help clients achieve cost savings. He said the firm also has in-house expertise to handle all aspects, from technical to legal, of e-discovery.
The principal co-authors of the 47-page “Guidelines for Best Practices in e-Discovery in New York State and Federal Courts” are Constance M. Boland, a partner in Nixon Peabody’s New York City office, and Adam I. Cohen (Ernst & Young), who chair the section’s E-Discovery Committee.

They warn lawyers not to assume anything; they need to be aware that their clients may not understand the legal obligations regarding ESI and that it is a mistake to think the adversary will pay for expensive e-discovery-related costs or will produce the ESI in the form a client needs or wants.

“Whether documents are stored on Facebook, in an iPod, in e-mail, or in the ‘cloud,’ members of the legal professional must understand their legal responsibilities in preserving, collecting and producing the electronically stored information,” NYSBA President Vincent E. Doyle III (Connors & Vilardo LLP) says in a release. “In a world where e-discovery is fast becoming standard ‘discovery,’ it is imperative that lawyers understand this emerging area of evidence so we can fulfill our obligations to our clients and the courts.” Tennant, who was active in getting approvals from the Executive Committee and president, among other things, said the idea for the guide came from Jonathan D. Lupkin, a partner at the New York City firm Flemming Zulack Williamson Zauderer LLP who chaired the Commercial and Federal Litigation Section before him.

Tennant said copies of the guide will sent to state and federal judges in New York as a courtesy. Additional copies are available online at www.nysba.org.
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