One of the better handouts at the ABA’s First Annual National Institute on e-Discovery last week was Judge John J. Hughes’ “Top Ten Tips for E-Discovery.” Judge Hughes is a District Court Judge in Trenton, New Jersey. Of course, I want to respect his copyright and that of the ABA, so what follows is a paraphrasing and elaboration of his ideas. Any mistakes are entirely my own.
1. TALK TO YOUR CLIENT. This is the key to the Zubulake Duty discussed in the blog page above. It means to talk to all the involved people in a client corporation: in-house counsel; IT on all levels; and the business players involved in the dispute. It also means to talk to your client about a records retention program, and the formation of an e-discovery team. It is good to see that Judge Hughes makes this his number one tip to improve e-discovery.
2. TALK TO OPPOSING COUNSEL. The only way for e-discovery to work is for there to be full and open communication between counsel as to what you are doing, what you want to do, and why. This is what Judge Hughes calls establishing the rules of the game before you start to play it. The new rules of procedure are very bare bones; they are designed to start dialogues between counsel, rather than end them. E-discovery requires a high degree of cooperation and transparency between attorneys; something that has been all too rare in the past. The days of strong adversarial conduct in discovery are over. “Hide the ball” tactics will inevitably lead you to trouble, not victory.
3. ID AND TALK TO YOUR CLIENT’S TECHIES. You need to get to know your client’s IT people, as the Judge puts it, to get on their “same wavelength”. This requires identifying the IT techs you need to locate, preserve, and harvest the ESI at issue in your case. It also requires identify the techie among them you should prepare and produce for deposition on ESI related subjects. Not all IT people make good deponents, to put it mildly. This tip emphasizes the importance of establishing lines of communication with your client’s techies. If your client does not already have an e-discovery team formed, this step is especially critical, and often extremely challenging. It is far better to have these lines of communication established well before a lawsuit hits.
4. EDUCATE THE JUDGE. Again the emphasis is full and open communication, this time with the presiding judge. Let the judge know what is going on with e-discovery in the case. If there are any issues, bring them to the judge’s attention as soon as possible. Do not assume that the particular judge you have is familiar with e-discovery. Some are, some are not. Some judges may require full briefing on the subject, and almost all will require some education as to your client’s particular ESI situation. Th complexity of most IT systems is beyond the experience of most judges, even technologically savvy ones, and this requires a detailed education process, including in some instances, testimony by your designated “talking techie.”
5. CONTINUING DISCLOSURE. Followup with your clients on IT and be sure that all responsive ESI is being preserved, harvested and produced. You need to be vigilant in preserving, and not just rely on a one time effort. It is way too complicated, and the amount of ESI at issue in a typical case is too vast, for a single effort to succeed. As a speaker at the ABA conference put it, never use the word “ALL” in e-discovery. You will never be able to identify and produce ALL responsive ESI, you will never be able to do a perfect job in this area, and avoid ALL mistakes. The best you can do is establish reasonable systems, and be diligent. This diligence requires followup and reminders. As Judge Hughes put it, “assume somebody will forget to disclose their PDA.”
6. MAKE SPECIFIC DISCOVERY REQUESTS. Be specific and focused in your e-discovery requests. Judge Hughes says the days of saying “any and all’ and “in any form” are over. Over-broad discovery is inappropriate and objections on that basis should be sustained.
7. SHOW “GOOD CAUSE” FOR PRODUCTION. You need to be prepared to establish a factual predicate for the production you request. If an objection is made, be prepared to prove why it should be produced. Never assume that the judge knows your case and why the ESI requested is imporant for you to prepare for trial.
8. EXPLAIN “UNDUE HARDSHIP” IN OPPOSITION. Again, prove your ESI discovery positions, offer evidence as to why the data requested is inaccessible. Do not assume the judge understands the burdens that a request may place upon your client. As Judge Hughes puts it: “offer certifications as to precise cost in time/money/loss of productivity.”
9. CONNECT E-DISCOVERY WITH E-TRIAL. The Judge here makes the valid point, which practitioners sometimes lose sight of, that the only legitimate purpose of e-discovery is to prepare for trial or negotiated settlement. From the start, you should be thinking about how you will use and present the electronic evidence you uncover at mediation or trial. Further, e-discovery should never be an end in itself, and judges should not allow one party to use the threat of expensive e-discovery as a tool to force settlement.
10. BE PROFESSIONAL. Judge Hughes reminds us that our reputation is our most valuable asset, and as he puts it, “your most effective litigation skill.” He also reminds us that although it takes time and consistent effort to build a good reputation, it is easily and quickly lost.