Fire, Ready, Aim! Negotiating eDiscovery Protocols: Part II
Expert Perspectives:The Inventus Expert Perspectives series features insightful interviews with thought leaders, technologists, and leading legal innovators at the forefront of the global business and practice of law. In today's edition, we interview Geoffrey Geftman, Discovery Consultant in Michael Best’s Information Governance and Discovery Services team, on his recommendations for negotiating eDiscovery protocols. This is Part II of II - if you missed Part I, you can read it here!
Negotiating eDiscovery Protocols: Best Practices
Q: What protocols or guidelines exist for eDiscovery practitioners?
A: The best guideline I’ve seen is the Mandatory Initial Discovery Program. It’s a pilot program in the Northern District of Illinois and Arizona that outlines an expedited timeline for eDiscovery. Practitioners have 70 days from initial pleading to produce all electronically stored information (ESI). The biggest benefit of this is that it forces the parties to deal with ESI cooperatively because of the truncated timeline.
In terms of best practices, practitioners should strive to “be the reasonable one in the conversation.” Courts don’t look kindly upon unreasonable stances.
Additionally, educate yourself and use experts where appropriate: eDiscovery and electronic data require special knowledge – and there’s a benefit in working with eDiscovery consultants or vendors and in-house eDiscovery specialists before sitting down with opposing parties.
Judicial opinions: Know your eDiscovery standards
Q: What government and industry group specifications exist for discovery protocols? What about courts’ rules?
A: Federal courts have been leading the way because they deal with these problems more often than state courts. Some districts have suggested or template ESI agreements.
Sometimes it’s beneficial to use your own. In that case, you’ll want to get agreements with opposing counsel first, and if you cannot come to terms, them put it in front of the court.
The use of technology-assisted review (TAR) and other analytics are approved by federal courts, although many state courts lack opinions on the topic. Since there are no parameters as to what is good or bad, putting an agreement in place before using TAR use allows you to avoid any argument with opposing parties or the court.
Generally, the courts will move more slowly than technology and the practice of eDiscovery, so it’s best to get in front of the problem, come up with your own agreements, and keep up with changes in eDiscovery technology and capabilities.
In terms of industry standard-setting groups, The Sedona Conference tends to keep up on everything – they give a lot of guiding opinions and advice that are very helpful to keep up with.
Reducing risk, cutting costs: eDiscovery pitfalls to avoid
Q: What common pitfalls do you see practitioners stumble over during discovery? Any advice for avoiding?
A: There are three mistakes I encounter with some frequency:
- 1. Not having any outliner agreement in place. Without at least a rough agreement, parties may wind up without any basis for complaint if things go awry. If a court has no real guidance or background in ESI, then you don’t know how it will fall. Even without specifics, some agreement is better than nothing.
- 2. Legal teams coming to a negotiation on search terms before they even process the data. You can’t know what search terms will be effective without getting a general sense of your dataset first. So make sure to take the iterative approach outlined above.
- 3. Many attorneys are hesitant about up-front costs when considering tools or processes that may reduce the initial data set at the outset of a matter. Up-front costs may appear prohibitive; however when compared with the ultimate cost of reviewing a larger data set, the cost-benefit calculation shifts. When analytics can remove thousands of documents from the data set for review, the deployment of sophisticated software can pay for itself and reduce the overall cost of a matter.
Missed the first part of this series? Read it here.
About Geoffrey Geftman: Geoffrey brings more than a decade of legal and eDiscovery experience to his work as a discovery consultant. He consults with clients, attorneys, and technical support teams to develop custom workflows and leverage legal technologies in order to create cost-efficient practices and streamlined discovery efforts. Applying his industry experience from both the legal and technological perspectives, Geoffrey bridges the gaps to assist legal teams in developing strategies for responses to production requests and implementation of eDiscovery stipulations to minimize data and exposure for clients. Geoffrey regularly provides software training and legal education presentations to legal teams and litigation support specialists to keep them abreast of developing topics and trends in eDiscovery.