eDiscovery Planning: Why the Forum Matters
Updated: Feb 15
How the type of proceeding impacts what you should be doing for eDiscovery
The goal of all legal discovery is to provide relevant information that may become evidence.
The scope of the eDiscovery permitted, however, depends on the stage and type of legal proceedings involved and the specific procedural rules that apply to the legal proceeding.
It is important to consider the rules of the forum and their impact on the scope of eDiscovery in determining overall case strategy.
This article covers different considerations for eDiscovery planning in:
Discovery rules differ depending on the forum.
Discovery rules differ depending on the jurisdiction, tribunal, governing body, or, in some instances, by specific judge, arbitrator, or other decision-maker.
Knowing the scope of what discovery will be required is essential to understanding the likely costs associated with pursuing the case.
Because the volume of potentially relevant ESI is generally very large, eDiscovery collection and review is often the most expensive part of litigation.
Knowing the scope of what discovery will likely be required is essential to understanding the likely costs associated with pursuing the case.
An understanding of the burden your client faces in collecting and reviewing different types of eDiscovery should inform litigation strategy from the outset.
In the Ultimate eDiscovery Guide, I discuss the various stages of eDiscovery and what to expect.
In planning for each stage, it is crucial to consider whether the proposed approach is legally defensible under the applicable procedural rules and jurisdictional case law if it is later challenged.
It is also just as important to weigh whether certain types of eDiscovery are really necessary and proportional to the needs of the case by knowing the procedural rules that apply and the likely sources of ESI.
Lawyers can only meaningfully argue for limits on eDiscovery if they understand up front the specific burdens their clients will face if certain discovery is allowed.
Proactively planning for how to preserve, collect, review and produce the appropriate amount of information should be done at the start of the litigation.
While the potential ESI that can be gathered for eDiscovery is vast, the actual scope of permissible eDiscovery is usually constrained by principles such as relevance and proportionality. See our post on What Proportionality Really Means.
If a client faces an undue burden in collecting, reviewing, and producing certain ESI, financially or otherwise, it is possible to obtain limits on the scope of permissible discovery to reduce the burden on the client and to control costs.
Lawyers can only meaningfully argue for limits on eDiscovery if they understand up front the universe of ESI that may be relevant and the specific burdens their clients will face if certain discovery is allowed.
In federal civil lawsuits and in many state district court civil lawsuits, eDiscovery is very broad.
If the parties have relevant electronically stored information to the dispute -- which is almost always the case in modern litigation -- eDiscovery is usually required.
Therefore, it is necessary to plan for what eDiscovery will be preserved, collected, reviewed, and produced in proceeding with the case.
Parties generally must make mandatory disclosures to each other of documents and other items and information they plan to use to support their case.
In some jurisdictions, parties must also provide broader disclosures of relevant documents regardless of whether they intend to use those documents.
In most cases, each party can also serve requests for production to require the other party produce additional evidence and information.
In addition, parties can serve subpoenas on third parties as part of litigation to obtain further relevant documents. These document subpoenas are often called subpoenas duces tecum.
eDiscovery strategy must be carefully planned to find the key evidence needed while not becoming so expansive (and expensive) that eDiscovery ends up costing more than the case is worth.
The initial projection of eDiscovery costs in most litigation, therefore, should consider the costs associated with at each of the following:
(1) The costs and time involved to preserve, collect, review, and produce ESI necessary to support the client's case and meet the jurisdiction's requirements for mandatory disclosures;
(2) The costs and time involved to collect, review, and produce ESI that is responsive to the opposing parties' discovery requests;
(3) The costs and time involved to review ESI that is produced by the opposing party as part of mandatory disclosures or in response to the client's discovery requests; and
(4) The costs and time involved to review ESI that is produced by third parties voluntarily or in response to document subpoenas.
Lawyers should also keep in mind that in county, city, and other lower courts, there may be constraints on the type of discovery permitted, often due to the fact that the disputes at issue are less complex or there is less money at stake.
eDiscovery strategy must be carefully planned to find the key evidence needed to support the the client's case in a sound evidentiary manner while not becoming so expansive (and expensive) that eDiscovery ends up costing more than the case is worth.
A common assumption is that arbitration can be less costly than litigation because the procedural requirements of litigation, such as broad discovery, do not apply. But that is not always the case.
In private dispute resolution proceedings, such as arbitration or expert determination, the scope of eDiscovery can vary widely.
As a binding proceeding, an arbitrator or panel of arbitrators typically have considerable discretion in tailoring the discovery requirements to the specific needs of the dispute.
A common assumption is that arbitration is less costly than litigation because the procedural requirements of litigation, such as broad discovery, do not apply. But that is not always the case.
In complex arbitration, the scope of eDiscovery may be just as extensive and possibly more extensive than would likely be available in traditional litigation. In high-dollar disputes, an arbitrator may be more willing than a judge to order expansive discovery when one of the parties requests it.
In contrast, in arbitrations in which smaller amounts of money are stake, there may be very little discovery exchanged prior to the arbitration itself or the parties may actually lack the right to seek discovery from each other.
When discovery is limited in arbitration, parties need to proactively focus on finding the necessary evidence to support their case and evaluate the strength of their adversary's case solely from reviewing their own documents.
eDiscovery is often still needed to find what the parties need but the scope of eDiscovery may be very limited to a few sources that appear to be most likely to have the key ESI for the case.
Parties should address the scope of discovery allowed at the initial conference with the arbitrator.
Pre-Litigation Negotiation and Mediation
Many attorneys believe that it is not worth starting eDiscovery or planning for eDiscovery costs if a lawsuit or arbitration has not yet been filed.
Unlike litigation or arbitration, mediation is non-binding and typically voluntary (although some courts order the parties to mediate to try to resolve disputes that are already in litigation) and eDiscovery is not required.
Is it worthwhile to start e-discovery when the parties are only negotiating or in mediation?
While the parties are not required to exchange eDiscovery with each other for mediation or in negotiations, it could be a mistake to put off eDiscovery planning.
First, the duty of preservation of relevant ESI attaches as soon as a party reasonably foresees that litigation is likely or inevitable.
Even when the parties are still negotiating or are headed to mediation, litigation is usually reasonably foreseeable in the event the dispute cannot be informally resolved. Parties still need to take steps to preserve and not destroy evidence.
Second, it is usually prudent to collect, process, and review at least some eDiscovery to understand the merits of the case even if the dispute is still pre-litigation.
Clients should assess whether they have evidence to support their claims or defenses. They should also know what "bad" information might be lurking in their own documents that could negatively impact their chances of prevailing if the case proceeds to litigation.
Third, exploring potential eDiscovery costs while preparing for negotiations and/or mediation helps forecast how much the dispute will cost to litigate.
This is important information to have in negotiating a possible resolution because eDiscovery costs are often significant and can be avoided if the parties can agree to settle the dispute.
Finally, when a party has collected and can present its key evidence to the mediator, it is also helpful to the mediator to have access to that evidence to fully understand the nature of the dispute and to assess the merits.
Having hard evidence available for use at the mediation can make a substantial difference in the mediator being able to convince the parties to reach a resolution to settle their dispute.
Disclaimer: The statements expressed in this posting are my own and are for general informational purposes only and do not constitute legal advice or a legal opinion.