Migrated from eDJGroupInc.com. Author: . Published: 2013-03-06 09:00:12  I recently had the opportunity to work as a Court appointed expert working on behalf of the judge, to advise the parties on eDiscovery issues when they couldn’t agree on a protocol.  The case has since settled and I can’t disclose the details of the matter, but the case definitely got me thinking more about using neutral experts in complex eDiscovery cases.Over the years, law firms and eDiscovery providers have hired well known eDiscovery experts to help differentiate their position in the market place.  Often these experts are brought into cases as partisan experts, which inherently signifies a level of biasness.Granted, I can tell you most of the reputable experts I’ve worked with in the past have high integrity standards and do their best to guide the matter in a reasonable manner.  However there have been cases of non-eDiscovery savvy law firm attorneys dealing with these legal issues that have an agenda.  That agenda in many cases has tremendous ramifications on developing a reasonable eDiscovery protocol (and budget).This is where a neutral expert can come in and assist in defining reasonable approaches.  In this past case, the parties dragged their heels for two years on an eDiscovery protocol and a magistrate judge was brought in to get the parties in line.  The judge brought me in as a court expert to ensure the parties and their appointed experts focused on the issues at hand and avoided the typical eDiscovery rat-holes that would adversely impact the discovery schedule.After sitting in the conference room for two hours and listening to all the legal arguments as well as the technical issues brought to the table by their respective experts, I structured the rest of the discussion towards putting a business process around the eDiscovery workflow to meet the time expectations while dealing with the large volume of data sources.  By the end of the meeting we had definitive timelines, custodians, selected data sources, and agreed on the technology to search and review the responsive data.  This was completed in a matter of four hours and the cost savings were significant to the overall project.So here are some of the ways to use a 3rd Party expert in eDiscovery matters:

  1. Meet and Confer Facilitator – Rule 26(f) mandates that eDiscovery issues be discussed as part of the meet and confer process…and many states follow the same guidelines.  However unless someone involved in the case is familiar with eDiscovery issues, it may be glossed over or completely ignored.  And in many cases, only one side may have experience with eDiscovery and the parties get locked down in a workflow that benefits only one side.  A 3rd party neutral can easily serve as an unbiased facilitator that takes into account the scope of the overall project and the burden it would place on all of the parties.
  2. Technology Evaluator – With the rise of the use of Predictive Coding and the ever-evolving technology leaps in eDiscovery, it is important to select the right technology as early as possible.  Even with consumer tools like the eDiscoveryMatrix that help purchasers evaluate the different technologies available, a 3rd party expert can determine if issues like multi-lingual documents, structured databases or archaic email systems (believe it or not, I had a GroupWise call the other day) will require technology outside of the mainstream.
  3. Technical Tie-Breaker – When the parties come across an impasse, a 3rd party expert can remove partisan objectives from technical considerations.  A 3rd party expert doesn’t have any skin in the game other than to make the process as efficient as possible.
  4. Data Evaluator – A 3rd party expert has the opportunity to have the ultimate preview and reality check on the documents being searched and reviewed.    On one project a few years ago, I was able to evaluate the raw ESI and process output results. From there I was able to give my opinion to the Court without arguments from parties or risks associated with privilege, trade secrets or confidential categories.

Having a 3rd party expert involved at the earliest stages is always the best.  This will certainly minimize spoliation issues as well as manage the overall cost of eDiscovery process.  The challenges are locating the right expert, timing on when to engage the expert, roles and responsibilities of the 3rd party expert so they don’t overlap with the parties’ experts, and the authority of that role.  I plan on covering this topic in detail this year so I appreciate any feedback and insight other practitioners have related to using 3rd party experts.Feel free to email me directly with your experiences or use the comment section below to get the conversation moving in the right direction.eDJ Group CEO and eDiscoveryJournal Contributor, Jason Velasco

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