Essential eDiscovery Questions to Ask Opposing Counsel

eDiscovery costs money, and most lawyers and clients understand this.

However, beyond knowing that some price tag is associated with processing and reviewing electronically stored information (“ESI”), it can be easy to get caught in the weeds when discussing the nuances of what costs how much, and why such a cost is being incurred.

Negotiating eDiscovery protocols early in litigation can help manage client concerns and opposing-counsel-induced headaches later. Clients want transparency and don’t like unexpected bad news, such as the “sticker shock” that can come from ESI forays that have run amok. Early decisions and agreements with opposing counsel let clients know what’s ahead early in the process, in terms of gathering, processing, review, and production of data.

Opposing counsel may not share the same affinity for transparency. Considering that the trend in eDiscovery rules is moving more and more towards a cost-benefit type of analysis (as opposed to bright-line rules on format and volume), it’s increasingly important that lawyers keep opposing counsel in check on burden allocation of eDiscovery. The discovery process should never be so one-sided that one party is bearing the cost of another party’s inefficiency.

With the above in mind, consider posing the following questions to opposing counsel very early in the case:

What software are you (or your vendor) using to produce documents? How will produced documents be formatted?

• This helps ensure documents will arrive in a format that works with your software. Production format should be standardized as early as possible in a document-intensive case.

Will you agree that each side bears the cost of processing and producing its own documents?

• This provides each side with a strong incentive to manage production costs efficiently, and it helps prevent your opponents from using their own inefficiency as an excuse to withhold discoverable data.

Will you agree that all document productions should be made via electronic transfer?

• Paper is bad. It takes up massive amounts of space and presents an expense that is often avoidable. Data is cheaper and much more efficient, but be careful not to fall back to formats like CDs, DVDs, or even USB flash drives. Disposable hardware like these are cheap for a reason: they can and will fail at the worst possible moment. B2B data transfer is both more secure and eliminates the cost and risk associated with cheap, disposable hardware.

Does your software or your vendor base production costs on a “per page” basis?

• Per-page costs are going the way of the dodo. Computers think in terms of data, not printed paper. Modern eDiscovery software understands this, but more entrenched vendors like per-page costs because they tend to inflate prices. Don’t let opposing counsel use per-page costs as an excuse to shift discovery costs to your client.

eDiscovery can be a real minefield, and represents potentially dangerous terrain for the uninitiated.  Staying ahead of the curve with questions like these can help avoid unhappy surprises, both for lawyers and clients, and they should help you obtain the documents you’re entitled to—without busting the budget.

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Tyler O’Halloran’s practice focuses on complex construction and commercial litigation matters.  Tyler has significant experience with electronic discovery and helps advise clients on best practices for e-discovery management.  He is passionate about incorporating technological solutions into the practice of law and believes that such a practice is vital to providing the most efficient and cost-effective legal service to the firm’s clients.