Federal Judges Offer Take on How to Trim E-Discovery Burdens

By Michael Greene

Corporate legal departments can help rein in electronic discovery costs by having efficient systems and processes to place retrieve and produce data and by making sure that their outside counsel can adequately explain why a discovery request is too burdensome, federal judges told Bloomberg Law.

Judge J. Michelle Childs of the District of South Carolina, Judge Joy Flowers Conti of the Western District of Pennsylvania, and Magistrate Judge David J. Waxse of the District of Kansas will be discussing how legal department can meet evolving discovery requirements during a Dec. 1 webcast that is being presented by Bloomberg Law and Exterro. The webcast—"E-Discovery Judges Get Candid: A Practical Conversation"— is one several events that are part of the third annual E-Discovery Day.

“E-discovery is still ever-expanding and very expensive in litigation, so corporate legal departments continue to have to balance innovative ways to control costs against the risks of being non-compliant in litigation,” Childs told Bloomberg Law in an email.

Controlling cost is the biggest challenge that corporate legal teams face when managing e-discovery projects, according to a recent survey of in-house legal professionals conducted by Exterro, EDRM/Duke Law, and BDO Consulting. The survey also found that corporate legal departments continue to conduct more litigation work themselves and that preservation and collection activities are commonly done in-house.

“One way to address the cost issue is to have an effective preservation process so that the data that is needed can be found and provided,” Magistrate Judge David J. Waxse, from the District of Kansas told Bloomberg Law in an email.

Hopefully, companies can address the cost issue by using effective management systems that “simplify the processes for responding to e-discovery requests quickly and prudently,” Childs said. Among the ways that legal departments generally can lower discovery costs include implementing sophisticated information governance systems, moving data to the cloud, and maintaining appropriate retention schedules and litigation holds, she suggested.

Outside counsel also can best assist their client with e-discovery issues by becoming “very conversant with [their] client’s unique management and data storage systems, preservation policies, litigation holds, and search methods for relevant electronically stored information,” she said. This can allow them to “provide the appropriate advice and guidance to the client on these issues and options for effective resolution of e-discovery disputes.”

Cooperation and Proportionality

The judges also said that legal departments and their outside counsel can reduce discovery burdens by working with their opposing parties to avoid discovery disputes and by using resources that are proportional to the issues in the case.

“First is to remember that only about one percent of disputes actually go to trial so the initial effort should be on resolving the dispute before spending lots of time and money on discovery. The second is to use cooperation as a method of avoiding contentious e-discovery disputes,” Waxse said.

“As part of cooperation counsel should consider using joint databases for the ESI needed in the litigation,” he added.

For disputes that do get to court, corporate legal departments and their outside counsel should be able tell the court specifically how much it will cost to complete a document production or how long it will take.

Companies can reduce their e-discovery burdens by being prepared at the earliest stage possible to provide the court with “concrete reasons and evidence” to support their arguments to limit or expand discovery, Conti told Bloomberg Law in an email.

Under Federal Rule of Civil Procedure Rule 26, discovery must be “proportional to the the needs of the case.”

Outside counsel can assist their client by focusing on “the need to assess the scope of the electronic discovery and assess proportionality issues and the need to cooperate with opposing counsel,” Conti said.

Complex Issues

Companies faced with complex and novel e-discovery issues should obtain the “best technological expertise and technology tools available that is proportionate to the issues in the case,” Conti said.

In cases where parties don’t have required background or knowledge to handle an e-discovery issue, they should consult with professionals that have the requisite expertise, she said.

Conti‘s Western District of Pennsylvania allows litigants to apply for a special master to oversee electronic discovery issues.

Another thorny issue that is top of mind to many legal departments is how to address the unique challenges that social media presents.

“Blurred boundaries of the public and private use of social media have caused tension in the courts on decisions as to relevance and invasion of privacy,” Childs said.

“In house legal departments are responsible for ensuring that companies are meeting all regulatory and compliance issues, but must also ensure that their social media policies are being effectively implemented and managed,” Childs said. “Such implementation and management requires more than just a guideline policy. Legal departments and outside counsel can address these challenges by providing necessary training on how social media impacts the company from productivity, to reputation, to protection of company property, to legal disputes,” she said.

To contact the reporter on this story: Michael Greene in Washington at mgreene@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

For More Information

The webcast is available at https://www.e-discoveryday.com/webcasts/

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