Affordable, Quality e-Discovery Is Not Attainable Without Teamwork and Cooperation

If you don’t work as an interdisciplinary e-discovery team, you will likely lose the game of e-discovery. You will make mistakes and get sanctioned, or pay too much, or both. Lawyers need to work with IT, techs, and others to do e-discovery right. But that is not enough. Even if you have a team, if your team doesn’t cooperate with the opposing players, or at least try to and go to the referee if they refuse, you may still lose. Teamwork and cooperation are the first two of the three pillars of e-discovery. The third is metrics and technology. You can probably avoid sanctions without the third pillar, but not high costs, and so you may win, but your client will still lose. This week in the eleven minute video below (yes, I know, it’s a minute too long) I explain the first two pillars of e-discovery. Next week I’ll tackle the third. Open the video below and watch in full-screen HD.

This entry was posted on Tuesday, March 23rd, 2010 at 5:22 am and is filed under Lawyers Duties, Spoliation/Sanctions, Technology. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

2 Responses to Affordable, Quality e-Discovery Is Not Attainable Without Teamwork and Cooperation

Richard Careaga says:

March 28, 2010 at 12:26 am

As lawyers, we have an unfortunate tendency to wish either to control or to abdicate. Add to this, among many older lawyers, a residual keyboard taboo and, among many lawyers of all ages, poor or no programming skills, and teamwork within an eDiscovery team becomes difficult.

I suggest that for litigators the duty of competent representation will be increasingly hard to carry without an understanding of a key defined term: algorithms + data structures = programming (N. Wirth, 1976). It does not mean that lawyers have to be able to write code, but they will need to be able to read and understand it.

Fortunately, for men and women who pride themselves of parsing, it’s less difficult than the Blue Book.

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Attorneys Mesa says:

April 22, 2010 at 2:37 pm

NOTHING is attainable without teamwork and cooperation, except playing solitaire 🙂

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Ralph’s eDiscovery Books

e-Discovery for Everyone, (ABA, 2017). Also see Ralph's video on this book.
Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner, Contributor and co-editor with Jason Baron and Michael Berman, (ABA 2017)
Adventures in Electronic Discovery (West Thomson Reuters, 2011).
Electronic Discovery: New Ideas, Trends, Case Law, and Practices (West Thomson Reuters, 2010).
Introduction to E-Discovery: New Cases, Ideas, and Techniques (ABA 2009).
e-Discovery: Current Trends and Cases (ABA 2008).

About the Blogger

Ralph Losey is a Friend of AIs, Writer, Commentator, Journalist, Lawyer, Arbitrator, Special Master, and Practicing Attorney as a partner in LOSEY PLLC. Losey is a high tech law firm with three Loseys and a bunch of other skilled attorneys. We handle major "bet the company" type litigation, special tech projects, deals, IP of all kinds all over the world, plus other tricky litigation problems all over the U.S. For more details of Ralph's background, Click Here

All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.

Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books.

Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management.

Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with incredible litigation and cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.

Sedona Principles 3rd Ed

1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.

2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.

4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.

5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.

6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.

8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.

9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.

10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.

11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.

12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.

13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.

14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.

Reprinted courtesy of The Sedona Conference®.

Go to www.thesedonaconference.org to download a free copy of the complete document for your personal use only.

e-Discovery Team ®