It is no surprise that most lawyers are not familiar with the intricacies associated with electronically stored information (ESI). Most of us did not attend law school due to a burning desire to learn about metadata or how to create a proper statistical sample for technology-assisted review. The modern day practitioner’s lack of ESI knowledge can cause some serious confusion and anxiety, on a good day. The reality of litigation in this day and age is that countless hours are spent by counsel on both sides of a dispute trying to explain to each other, or worse, to the court, the what and the how of their eDiscovery efforts. Despite attempts at explaining the methodologies used, there is a serious lack of confidence between parties in litigation involving eDiscovery, thereby prompting extensive meet and confer sessions. These meet and confer sessions often result in an impasse between the parties and, ultimately, the need for court intervention. It is important to consider utilizing an eDiscovery liaison as the solution to this problem.
On November 27, 2012, the U.S. District Court for the Northern District of California published “Guidelines for the Discovery of Electronically Stored Information” (Guidelines). The Guidelines are available at http://www.cand.uscourts.gov/eDiscoveryGuidelines. Guideline 2.05 suggests the use of an eDiscovery liaison during litigation involving ESI. The Guidelines identify an eDiscovery liaison as an individual (whether it be in-house counsel, outside counsel, a company employee or a third-party consultant) who is knowledgeable about and responsible for all facets of ESI as it relates to the party whom the liaison represents or is employed by.
Many law firms, and their corporate clients, fail to realize the practical significance of having an eDiscovery liaison on board throughout the discovery process. This failure can, and often does, lead to a number of disadvantages when it comes to litigation, some of which are: inefficiency, lack of organization, increased costs, missed opportunities in the discovery process, the necessity for court intervention, or even sanctions for failure to abide by eDiscovery obligations. To avoid these disadvantages, someone from the corporate client’s in-house litigation group, a lawyer within the outside counsel’s firm or a third-party vendor (or all three), should be tasked with having a sound understanding of where the client’s ESI resides, the various types of ESI involved, how to access it, the format that the ESI is in, how to properly collect it, how to conduct searches within the ESI and how to properly produce it.
Having a dedicated eDiscovery liaison on-hand is important as this person is the mechanism by which the parties are able to speak intelligently to each other and to the court. The liaison provides all parties involved with the requisite level of confidence in relation to the methodologies used for the preservation, collection, processing, searching and production of your client’s ESI. This increased confidence will lead to fewer points of contention between the parties and, as a result, little or no court intervention.
The topics addressed in the Guidelines are of increasing significance in any jurisdiction given the consistent rise in the volume of data and the use of that data in litigation. Together with the help of the Guidelines and the participation of an eDiscovery liaison, counsel will be better-equipped in approaching and discussing eDiscovery related matters in an efficient, organized, cost-effective and defensible way.
Neda Shakoori is an attorney with McManis Faulkner. Her practice focuses on civil litigation with an emphasis on commercial and business law matters. For more information, please visit mcmanislaw.com.