United States: Five E-Discovery New Year's Resolutions

The New Year is upon us, and you know what that means: New Year's resolutions! It can be easy to make resolutions but tough to keep them. So this year we have opted to take the easy way out and make some New Year's resolutions for you to keep!

1. I resolve to increase my e-discovery knowledge

2015 was an eventful year in the e-discovery space, with numerous changes that affect litigators. Perhaps the most notable development was the adoption of amendments to the Federal Rules of Procedure (effective December 1, 2015), several of which directly implicate e-discovery. E-discovery also continued to be a focal point for ethical analysis, including the State Bar of California's formal ethics opinion issued on June 30, 2015, including e-discovery awareness and knowledge as an integral part of an attorney's duty of competence. If litigation discovery is part of your practice, resolve to sign up for at least one CLE this year that focuses on the new Federal Rules, ethics in discovery, or both!

2. I resolve to update my discovery approach

Discovery has become increasingly expensive, a reality that triggered some of the Federal Rules reforms. It is also spurring advances in predictive coding and is increasingly prompting members of the judiciary to demand that parties approach discovery in a reasonable and cooperative way. No longer is discovery about whatever may be relevant or lead to relevant evidence – now it is properly limited to what is reasonable and proportional to find the evidence necessary to resolve disputed issues. Rather than trotting out those boilerplate discovery requests or responses, resolve to take the time to truly analyze the case so you can restrict your requests to what you really need, and object only to requests that truly go beyond the bounds. Make good faith efforts to confer with opposing counsel to develop a cooperative discovery plan that is reasonable and acceptable to all involved. Where disagreements persist as to scope, consider phasing discovery to start with what is most important and defer any disputes about what further discovery may or may not be needed until both sides have the benefit of seeing what is found from the most promising and accessible sources.

3. I resolve never to make unqualified discovery representations to opposing parties or the Court.

Electronically stored information ("ESI") is sneaky; it is everywhere but can be difficult to find if you do not know where and how to look; it replicates itself with alarming ease but just as easily can be lost through automated processes or technological glitches. It can be inexpensive to store but, particularly in large quantities, quite costly and time consuming to identify, preserve, collect, process, analyze and produce. In any matter involving ESI in any amount – which you can assume is every legal matter, in this day and age – the odds are stacked against perfection. Even with good faith efforts, your clients will not be able to identify, locate, and produce every discoverable document, let alone do so as quickly as you, adverse parties or a court think they should. Never promise that "all discovery will be complete within ___days" or certify that "every relevant document has been produced..." Instead, promise and deliver reasonable efforts, producing information on a rolling basis starting as soon as practicable, and making proportional and good faith efforts to find and produce relevant and responsive information.

4. I resolve to seek a 502(d) order in every case

Some Judges have been saying it for years, and this year, the Federal Rules have made it official (in amendments to Rule 16(b) and 26(f)) – FRE 502(d) orders are important! The reality of large-scale document review is that nobody is perfect and the size and scope of e-discovery make the inadvertent disclosure of some privileged information all but inevitable. While other protections exist under Federal Rule of Evidence 502, only court orders under Rule 502(d) can maximize privilege waiver protection. Resolve to incorporate appropriate FRE 502(d) orders into your discovery orders.

5. I resolve to consult e-discovery experts early and often

Virtually every significant litigation matter has the potential to involve large-scale e-discovery. But, how many experienced litigators also have the time to become and remain proficient in e-discovery? This area of the law is developing rapidly – it is vastly different in 2016 than it was in 2011, and will only continue to evolve. The surest way to achieve optimal results is to consult, early on, someone who concentrates his or her practice in e-discovery. Just as you would bring in co-counsel when dealing with a very specialized area of law that is not your main area of practice, consulting with an e-discovery expert early, and on an ongoing basis, can help craft an effective and cost-sensitive discovery strategy while avoiding the many hidden pitfalls waiting to swallow you in this complex area of practice.

Make and keep these resolutions, and they will help you and your clients enjoy a happy, productive, and sanction-free 2016!

Originally published by Bloomberg BNA.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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