Fighting E-Discovery And Not Losing Your (Client’s) Shirt

If you litigate in federal courts and have not yet reviewed the Sedona Conference Cooperation Proclamation, wake up!  The final exam is about to start and you have slept through your alarm!  Although not as revolutionary as Thomas Paine’s Common Sense, the Cooperation Proclamation is premised upon the heretical (to some) proposition that "Cooperation In Discovery is Consistent with Zealous Advocacy" and makes a sharp distinction between advocacy (good!) and adversarial conduct (self-defeating when it comes to e-discovery).  Significantly, a number of federal judges have "signed on" to the Cooperation Proclamation and their published discovery decisions provide the wise practitioner with a road map for navigating through the shark-infested waters of  e-discovery.  On March 19, 2009, SDNY Magistrate Judge Andrew J. Peck issued what he characterized as a "wake-up call to the Bar in this District about the need for careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or "keywords" to be used to produce emails or other electronically stored information ("ESI")." William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company, 07 Civ. 10639 (LAK) (AJP).  In his well-crafted decision, Magistrate Peck derides lawyers, who design "keyword searches in the dark, by the seat of the pants" without even bothering to consult with their clients beforehand.  The danger for practitioners in not "getting it right" the first time is running the risk that the Court may issue an e-discovery order that is more costly and burdensome to your client than might have otherwise been the case.  Some very good articles have been written by practitioners concerning how to anticipate meeting the concerns of a Cooperation Proclamation jurist during your initial client meetings in preparation for the Rule 26(f)(3) ESI meet and confer.  One such article is "The Collaborative Model of E-Discovery" written by J. Mark Coulson at Miles and Stockbridge PC in Baltimore in Product Liability Law 360 on March 11, 2009 (Law 360 requires a subscription)  Mr. Coulson provides  practical advice such as being aware before offering to search your client’s hard drive for documents that each gigabyte on a hard drive may contain 30,000 to 50,000 documents.  The "take-away" from most of the good  e-discovery articles is for the practitioner to be proactive and to address ESI issues with both the client and opposing counsel early in the meet and confer process.  Strong client advocacy in the ESI realm requires not hiding the ball about relevant witnesses, e-mail system and retention schedules. 

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