Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2010-06-02 04:30:42Format, images and links may no longer function correctly. Recent discussions on Debbie Westwood’s Small Firm eDiscovery LinkedIn group have revolved around the results of the 7th Circuit’s pilot program to reduce eDiscovery costs. The focus of this program seems to be actual discussion at the Rule 26(f) Meet and Confer instead of the usual bilateral sets of demands that are misinterpreted or poorly translated back to the technical teams. The program reflects the ongoing efforts of The Sedona Conference® Cooperation Proclamation to “reverse the legal culture of adversarial discovery that is driving up costs and delaying justice”. This effort to make all the attorneys ‘play nice’ with each other does not address one of the critical assumptions that has crept into civil litigation as a whole. That is the assumption that only attorneys can or should directly communicate between the parties once litigation is filed.
Facts and evidence are the weapons of the litigation arena. Our adversarial system encourages counsel to ethically withhold everything possible while seeking disclosure from the opposition. Other than the context of an actual deposition of a Rule 30(b)(6) designated corporate witness, most attorneys want to screen and filter the information from clients or experts. This sets up a legal version of ‘The Telephone Game’ or the politically incorrect ‘Chinese Whispers’ wherein each player whispers a message to the next. The last person in the chain announces the resulting message to the group and everyone enjoys figuring out what got added or lost in the transfer. This children’s game is being reproduced every day as outside counsel receive technical information that they do not understand and then try to negotiate search parameters, collection scope and agreed exceptions with opposing counsel. There are tech savvy attorneys out there, but they are not subject matter experts or system administrators. They do not have the historical context and configurations of customized enterprise communication and record systems at their fingertips. So how can they accurately represent the abilities and limitations of those systems?
Good, ethical counsel understand their subject matter limitations and will run back and forth in a slow motion relay race to get every statement or assumption verified by the client. This drives up the cost and pushes all of the parties to create a discovery plan that will to get everything on the first pass. This never happens. Period. To obfuscate Helmuth von Moltke, “No discovery plan survives contact with the ESI.” Relevance or scope definition is an iterative process which defies counsel’s presumption of a once-and-done Meet and Confer. When I sat in the 30(b)(6) hot seat, I had to fight with well-meaning counsel to get a seat at the table and directly negotiate with regulators and the opposition. I got so tired of fielding impossible, impractical and inefficient discovery requests that my counsel had promised yesterday that it was worth getting a mandate from my general counsel to intervene in the process up front.
So the takeaway is to:
Let the geeks speak!
Now for some guidelines:
- Qualify your chosen nerd and go over the rules of engagement carefully. I have even run mock meetings or depositions for this. You only have to do it once to know how they will handle unexpected questions.
- Make sure they understand the difference between the general system knowledge that they are there to provide and matter specific facts or rumors. Don’t bring anyone who might be called as a fact witness to the negotiation.
- Educate them on the difference between absolute statements versus ‘to the best of our knowledge’. A little practice will have them qualifying assumptions to everyone’s satisfaction. IT tends to assume that tech works as designed unless someone screams about it. Legal should work on the principal of trust but verify when it comes to tech.
- Train them to give you time to intervene before they answer in case the discussion goes off topic. This can seem stilted, but any expert witness knows to think through any answer prior to opening their mouth. Besides, it makes you look like you take the question seriously.
- Record the meeting. A live tape or video clip does wonders for poor recollection when you are standing before the bench.
- Set up communication protocols for ongoing questions. Your geek should never speak to the other side without counsel on the call.
- When in doubt, get an expert. Use them to help you select and train the right long-term designated geek.
All of these points assume that the strategic objective is to actually discover the accessible, relevant ESI in the most efficient manner possible. It also requires the opposing counsel to bring their own pet geek to the table. This may not apply in matters where the discovery burden is completely on the defense and the plaintiffs are using discovery solely to force settlement. Every matter is unique, but if you want to avoid garbled translations and get a practical discovery plan, you need a geek at the table.