Advanced eDiscovery Institute Shines Light on Proportionality
Over 600 attorneys and Judges from around the nation convened in McLean, Virginia on November 21st and 22nd for the 10th Annual Advanced eDiscovery Institute, organized by the Georgetown Law Center. A familiar theme ran throughout the Institute: data is everywhere and GROWING! One presenter remarked that Google receives two million search queries daily; Facebook users share over 700,000 pieces of content daily; and over 200 million emails are sent and received each day. The increase in electronically stored information (“ESI”) is growing exponentially. As a business owner, what can you do to address the enormous amount of ESI used in your company and by your employees? What happens if a process server appears with the dreaded Summons and Complaint initiating a lawsuit against your company?
One of the main concepts that emerged during the Institute was proportionality and the quest to right-size your eDiscovery process to fit smaller cases. First, adjusting your strategy for handling smaller cases begins with defining the scope of relevant data. You should engage a trained eDiscovery attorney who can help you narrow the types of ESI that you must preserve, collect, and possibly produce during the litigation. Another strategy is to conduct abbreviated discovery and then have a settlement conference prior to unleashing a full scale discovery effort.
It is almost always a bad idea for companies to handle data preservation and collection efforts without an attorney. Even if you are a very tech-savvy company, there are many landmines that you don’t want to fall victim to. One item to consider is who would testify as to your pattern or practice of collecting and reviewing documents? What review tool should you use? There are lots of review platforms on the market that are affordable and easily accessible. Many of these tools allow you to review documents without conducting a linear (document-by-document) review. This can save your company time and money!
Another strategy which applies to cases of all sizes is the use of 502(d) orders. Judge Peck, U.S. District Court Judge, Southern District of New York, exclaimed “502(d) is insurance.” Judge Peck suggested that these orders should be used in every case. Essentially a 502(d) order allows you to conduct basic searches for privilege and other relevant search terms which may be connected to privilege without conducting a full blown linear review. Then, if privileged documents are inadvertently produced, you can clawback these documents pursuant to the prior agreement of the parties and the Court. While proportionality concerns remain an issue for litigants in all cases, there are a multitude of strategies which can help you navigate these waters.