Four practical rules for electronic discovery.

• Author: Stieglitz, Val

IADC members Val Stieglitz and Atiba Adams spoke at a committee presentation at the 2005 IADC Midwinter meeting in Puerto Rico. Their presentation evolved into this piece, originally published in the March 2005 Business Litigation newsletter. Their goal was to identify practical issues that in-house and outside counsel face in managing the electronic discovery process to successful conclusion. This article highlights essential tools for the complicated world of litigation discovery.

1. Remember Your Audience

   Businesses get into trouble when the court believes that they acted unreasonably in preserving, collecting, and/or producing discoverable electronic material. The goal, therefore, is to get to what your judge will view as a reasonable search, review, and production. The goal is not to satisfy your IT consultant or your imaging vendor, or an outside counsel for whom computer software and e-discovery is a personal hobby. Only the judge decides whether you acted reasonably. This basic truism can be overlooked with remarkable ease. Rule #1 therefore, is to gear everything--your plan for collection and review, disclosures, correspondence with opposing counsel toward the judge's ultimate assessment.

2. Recognize and Deal With The "Generational Divide"

   Everyone today talks about e-discovery--everyone has a laptop--everyone is fluent with email, key word searches, and TIF images. Well, not exactly. State and federal court benches are populated by vast numbers of men and women who "grew up" as lawyers in an era of hard-copy document production. Most have acquired some degree of computer-fluency. Some have not. Of those who have, few are as comfortable in the world of electronic data as lawyers who came of age in the electronic era. This reality has profound consequences for the practitioner who has to figure out how to explain his/her client's e-discovery problems and issues to a judge. Thus, Rule #2 is to forget techie jargon. Instead, ask yourself how conversant your particular judge is with the world of electronic data. If the answer is "a little bit," then think about how you can analogize the issues you are facing in your electronic process to the hardcopy process with which the judge may be more familiar. Use graphics and flow-charts to show the various steps in the process and to pinpoint the stages at which your system or other factors imposed limitations on what you could do. Show the points on your chart at which the costs skyrocket, as...