Establishing an E-Discovery Protocol

I have long advocated the importance of successfully reaching agreement on an electronic discovery protocol early in the litigation process as a means of avoiding disputes down the road and minimizing risks of sanctions. A well crafted, comprehensive protocol can go a long way toward eliminating disputes over form of production, search terms, scope of search and even preservation obligations.

E. Kendrick Smith and Robin A. Schmahl, writing in the Fulton County Record, have provided a good checklist of considerations for protocol negotiations in their article "How to Get an E-Discovery Protocol Rolling" published earlier this month and reproduced at Law.com. Their concluding thought says it well:

Discovery protocols work best when the attorneys do their respective homework and cooperate with each other early in the discovery process. If done thoughtfully and in good faith, entering into such a protocol can drastically reduce costs and streamline discovery. It is a litigator's best tool for managing electronic discovery and avoiding discovery disputes.

To their comments I would add one additional thought: Lawyers must ensure that they fully understand the systems and technology they will be dealing with, both for e-discovery support and at the client's site. In other words, the lawyers must know what they are to be talking about in the protocol negotiations.

It Pays to Know What You Are Doing

There's a brief decision by Magistrate Karla Spaulding from the Middle District of Florida that will probably be overlooked by most of my e-discovery colleagues in the blogosphere and certainly won't have any lasting importance in the body of electronic discovery jurisprudence. It does, however, underscore the importance of knowing what you are talking about when making presentations to the court (or opposing counsel) on e-discovery matters.

In Bray & Gillespie Management LLC, et al. v. Lexington Insurance (2009 U.S. Dist. LEXIS 3824 (Jan. 9, 2009), the core issues before the court involved sanctions for failure to comply with a court order. However, in a short footnote at the end of her opinion, the magistrate clearly expressed her frustration over the fact that the lawyers for one of the parties didn't understand the capabilities of their litigation support software and accordingly the party had to spend a lot of money unnecessarily to create a hard drive. Reading between the lines, it would appear the lawyers did not fully understand the capabilities of their Introspect database.

The message, once again, is don't mess with e-discovery if you don't know what you are doing and/or don't have competent assistance at your side.

Is the Problem Lawyer Incompetence?

Ralph Losey has published a thoughtful commentary on the role of lawyer competence (or the lack thereof) in contributing to many of the problems identified in the countless court decisions chastizing one party or another (or their counsel) for electronic discovery lapses. His post, entitled Lawyers Behaving Badly, is worth a read.

There is no question that many, many lawyers are grossly under-equipped to interact with corporate clients maintaining large and sophisticated IT systems and that they must rely upon (1) the clients to give the right answers when asked about relevant documents and systems and (2) their instincts to never trust the first answer they are given. Although the situation is improving, most corporations have not structured their IT systems for litigation; rather they set them up in a way that makes sense for doing business. This fact just increases the challenges counsel face in meeting the exceedingly high standards of performance set by the courts.

Countless seminars teach lawyers about the law of e-discovery but few teach the technology of e-discovery. That is where the shortfall exists.