Vol. 30, No. 4, #8. Ten Tips Leading to Efficient and Effective eDiscovery for the Small Law Firm.

• Author: Author: Ervin A. Gonzalez and Patrick S. Montoya

Wyoming Bar Journal

2007.

Vol. 30, No. 4, #8.

Ten Tips Leading to Efficient and Effective eDiscovery for the Small Law Firm

Issue: August, 2007 Author: Ervin A. Gonzalez and Patrick S. MontoyaTen Tips Leading to Efficient and Effective eDiscovery for the Small Law FirmAmendments to the Federal Rules of Civil Procedure relating to electronic discovery became effective on December 1, 2006. Along with the new rules came significant challenges for the small firm plaintiff lawyer, who now has to deal with the burdens created by the new electronic discovery rules. The amendments present difficulties for smaller plaintiff law firms with limited financial resources, for several reasons. First, it may become very expensive for the plaintiff firm to obtain needed electronic discovery because of the possibility of cost shifting in the new rules that may force the plaintiff to pay the defendant for the requested discovery if the defendant establishes that the discovery is not reasonably accessible. Second, the defendant may intentionally swamp the plaintiff with unnecessary discovery to increase the costs and deplete the plaintiff firm's financial and personnel resources. Third, a plaintiff firm is now required to hire forensic computer experts to assist in narrowing the scope of the search and to consult with the plaintiff lawyer to address what discovery should be easily accessible, and in what format the discovery should be produced. In this article, we propose ten fundamental cost cutting and time saving tips to assist small plaintiff firms in dealing with the new electronic discovery rules.

Reasonably Accessible Documents and Information

The new rules specifically permit the discovery of electronically stored information. As part of the rule changes, Rule 26(b)(2)(B) was amended to permit defendant's responding to discovery to designate certain discoverable electronically stored information as "not reasonably accessible." This means that the information may exist, but it is too much of a burden to produce so that the expense of finding and producing the information and documents requested should fall on the plaintiff. In that case, the defendant must identify the existence of the documents and information requested, but is not required to produce it until the court determines whether the information is reasonably accessible. Although this sounds reasonable, it will undoubtedly be used by defendants as a tool to thwart discovery by increasing the cost of discovery and by creating another road block for the plaintiff attorney to overcome before getting the relevant and necessary discovery to win the case. Once the defendant states that the requested discovery is not reasonably accessible, a two-step analysis is required by the court. This is commonly referred to as the "two-tiered approach." Under the two-tiered approach, the first tier is challenging an opponent's designation of electronically stored information as not reasonably accessible and conducting limited discovery on the issue. The defendant has the burden of proving the information is not reasonably accessible.

The second tier comes into play if the court agrees that the defendant's electronically stored information is not reasonably accessible. Once this occurs, the requesting party must show "good cause" for the discovery. This means that the plaintiff lawyer will have to show that the discovery falls within the scope of discovery and is sought in good faith. Once that determination is made, then the court may order the defendant to produce the documents, but may require the plaintiff to pay for the costs of producing the documents. Under Rule 26(b)(2)(C) the court may shift the costs of the discovery to the requesting party "of part or all of the reasonable costs of obtaining information."

First Cost-Cutting Tip: Plan Your Discovery by Taking a Global View and Pinpointing Your Needs

What do you really need to win your case? This is the question you must ask yourself as you prepare your general discovery plan. How does electronically stored information help your case? Will you get the same "bang for your buck" from traditional depositions or from paper discovery? Is it really worth having a computer forensics expert restoring electronically stored information and performing labor-intensive, high-cost procedures to obtain the information?

The only way you will know the answers to these questions is to plan your discovery appropriately. Just like an architect/engineer cannot design a building without a plan for the foundation, using concrete, steel, and wood for support, your case cannot be built without a foundation. Just like a building, if the foundation is weak, the case will crumble. The components of the foundation for your case are the discovery tools available to you: depositions, interrogatories, requests for production, requests for admission, and inspections. Before venturing into electronic discovery, determine whether you need it, and if so, how it fits in your overall discovery plan. Ask yourself: "Do I need electronically stored information to build the foundation of my case?"

Limiting electronic discovery to what you really need will greatly reduce your costs and preserve your resources. Request only the electronic discovery necessary to your comprehensive discovery plan. This will greatly reduce your...