August 25, 2017

Electronic Discovery Update

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E-discovery continues to evolve. The Federal Rules of Civil Procedure have several provisions addressing the discovery of electronic documents, including email correspondence. Many state court rules of civil procedure also address the discovery of electronic documents.

E-discovery continues to be a major component of the overall cost of litigation. In some cases, e-discovery costs exceed 50 percent of the overall costs of litigation.

Courts urge transparency and demand cooperation in discovery, and particularly, e-discovery. Judicial opinions have cried foul over the lack of cooperation among parties and attorneys, and in some cases failure to cooperate with the opposing party has been deemed sanctionable. Cooperation also has strategic advantages. It can increase predictability and control over the information that is preserved and disclosed.  It can lead to agreements that influence the pace and extent of discovery. Above all, it can substantially reduce risks, especially when couple with a confidentiality and protective order (CPO). A CPO normally contains a non-waiver order, meaning that if privileged information is produced, the producing party has not waived the attorney-client privilege as to the privileged document, and the privileged document must be returned to the producing party.

Most electronically stored information (ESI) is of little significance to an individual dispute; however, some ESI is very important. With proper non-waiver and other orders in place, the savings from not undertaking a document-by-document review of that ESI far potentially outweighs any potential negative consequences of producing unimportant ESI.  Such a strategy should be considered in cases with heavy ESI demands.