Simone Brown, Area Vice President for Special Counsel’s Pacific Northwest offices, recently sat down with Aaron Crews, eDiscovery Counsel for Littler.
Why did you leave your litigation practice and move to eDiscovery?
Aaron: Before I moved full-time into my current practice, I was already advising on these issues regularly, and, doing so made me realize a couple of things. The first thing I realized was that eDiscovery is the single largest spend point in most litigation. I like to refer to it as “the bloody tip of the spending spear.” Accordingly, a deep mastery of this area is a huge value add to clients who are struggling to get a handle on constantly increasing litigation costs. The second thing I realized was that this area of the law is new and constantly developing and evolving. As a result, we’re constantly building and then rebuilding this ship as we sail it. That makes this area of practice exciting and fun. Once I realized those two items, the choice was a no-brainer for me. Moving my practice so that it concentrated 100% on issues related to ESI (electronically stored information), eDiscovery, computer forensics, electronic evidence and data governance was the only option that made sense.
What are some of the basic factors one should keep in mind when budgeting for eDiscovery?
Aaron: eDiscovery budgeting is a tricky issue. In order to have any chance of creating an accurate budget you need to have a clear understanding of the systems and data repositories that hold potentially relevant data, and you need to be prepared to articulate to opposing counsel which systems are in play and which you believe are off limits. In addition, you need to have an idea of how much data you are dealing with; the size of your data pool directly impacts costs associated with preservation, collection, processing and review. Once you know how much data you’ve got, generating a workflow that allows for efficient and cost-effective collection, culling, search and review tends to become much easier.
What value does engaging eDiscovery Counsel provide?
Aaron: eDiscovery Counsel can help you come up with a true discovery plan that can deal with ESI from all parties in the litigation. Initially, eDiscovery lawyers can advise clients as to whether or not an event triggers a duty to preserve data and documents, and, if so, what steps or processes are necessary to ensure preservation obligations are being met. eDiscovery lawyers grapple with these issues all the time, so we are particularly suited to help clients craft and execute a preservation process that will pass muster if it is ever brought into question by a court or adversary.
Once litigation commences, eDiscovery lawyers bring cutting-edge knowledge and best practices to the discovery portion of litigation. This knowledge base ensures that everyone (clients, opposing counsel, and where necessary, the court) has a clear understanding of what the relevant data sources are, how that data will be preserved, collected, processed and produced, and what the realistic timeline is for completing that process. Good eDiscovery lawyers also provide the parties with the tools they need to be able to negotiate for reasonable limits on the scope of electronic discovery in a given case, and, where agreement cannot be reached, to go into court and fight for those reasonable limits. This service can be particularly important to the budgeting process discussed above.
Lastly, ESI can present some particularly difficult evidentiary issues. eDiscovery lawyers generally understand these issues and can help ensure that the “smoking gun” email gets in front of the Trier of Fact when it’s time to submit evidence in support of a position. There is no feeling worse than having evidence that is vital for your case and not being able to get that evidence into the record and before the Trier of Fact.
What does “Defensibility” really mean in the most practical sense of the word?
Aaron: In eDiscovery, I think “defensibility” really means we have a transparent and well-documented process for every aspect of the eDiscovery process, which, if we are forced to defend it, allows us to walk before a judge or jury, and say “here is what we did,” and that is reasonable based on the knowledge we had at the time. The creation of a defensible process is, in my opinion, the art of lawyering and requires sound judgment such that a judge or jury playing “Monday Morning Quarterback” can look at what the client knew at the time and the steps they took to preserve data, or collect data, or process data and say, “Yeah, that makes sense. That seems reasonable.”
Can you outline some key mistakes to avoid in the eDiscovery process?
Aaron: In my opinion, there are essentially four major mistakes people make in the eDiscovery process:
The first mistake is not taking the time to investigate and understand where the potentially relevant data is and how the systems that create it or store it actually function. Understanding where the data is and how the systems at issue function gives you the best chance of ensuring proper preservation of relevant data and a realistic knowledge of what it is going to take to export relevant data out of those systems.
The second mistake is not having a plan. I firmly believe that to be successful in litigation in a digital world, you have to sit down and create a plan that governs how data will be preserved, how it will be collected, how it will be processed, how it will be searched, and how it will be reviewed. When you are dealing with ESI, not having a plan is a killer and can make the process more difficult and more expensive than it needs to be.
The third mistake is acting unilaterally and making decisions about how to process and search data without first meeting and conferring with opposing counsel. I am a firm believer that the meet and confer process is a great tool for avoiding needless eDiscovery motions and spoliation sideshows. To the extent possible, I generally try to use the meet and confer process to get some agreement on the data sources that are in play in a particular piece of litigation and which are out of scope or otherwise off limits. I also try and achieve some agreement on the search process and format for production. These items are, in my experience, the most frequent sources of conflict in the eDiscovery process outside of preservation.
The fourth major mistake I see is parties who are unwilling to fight for what they believe are reasonable limits on eDiscovery in a given case. If you’ve taken the time to do an investigation into the data sources that are likely to store or create relevant data, and you’ve been transparent with opposing counsel and provided them the opportunity to have input into your proposed plan for searching and producing relevant data in discovery, reasonable minds should prevail and it should be possible to agree on some reasonable limits. If your opponent refuses to agree to what you think are reasonable limits, it’s time to go to court. Those types of disputes are exactly why we have judges, and I believe it is better to have clarity on these types of issues at the outset of the discovery process.
Aaron D. Crews is West Coast eDiscovery Counsel for Littler. Reinforcing the firm’s commitment to providing its clients with leading-edge solutions in this rapidly developing area, Aaron provides focused guidance and expertise on information governance and electronic discovery matters to Littler’s lawyers and their clients, including providing case and client-specific advice about meeting preservation obligations, addressing “meet and confer” obligations, and handling court appearances that address eDiscovery matters. Additionally, Aaron is an adjunct professor at McGeorge School of Law where he teaches courses on eDiscovery, legal issues related to computer forensics, and electronic evidence. He also appears as a guest lecturer at the University of San Francisco School of Law speaking on eDiscovery and electronic evidence.
Simone Brown is an Area Vice President of Special Counsel, overseeing its Seattle, San Francisco and Silicon Valley offices.
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