Thoughts On E-Discovery
In a previous and recent case with the State of Oregon, several counties sued the state for over a billion dollars. They alleged that the state had breached a contract with them for high timber harvests and therefore higher timber generated payments. The issues in the case went all the way back to the 1930s. In more recent years the state and the counties had generated millions of emails that were potentially relevant to the case. In addition, the state had several databases with potentially relevant information. This is just one example of the type of electronic evidence volume regularly faced in large commercial and government litigation. How do you go about addressing the e-discovery problem? After working on discovery in the timber case and several other “big document” cases, including the Exxon Valdez case, here are four thoughts on how to deal with such cases that might help you get through the process.
Start by recognizing that you are confronted with a big e-documents case. Remember that the Federal Rules of Civil Procedure (FRCP) and similar state rules require disclosure of a broad swath of documents. These include all electronically stored documents. So, email and text messages and databases are at least potentially subject to disclosure. If you will have to produce thousands of documents (and also receive production of thousands of documents) you will need to treat the case as a “big documents” case. Your attorney should be able to help you with this determination.
Hire a law firm or group of lawyers that is familiar with what it takes to search for, analyze, produce, and receive documents at an industrial scale. Most of law practice consists of crafting pleadings and motions unique to a particular case. In that sense, being a lawyer is like being in a medieval guild. Handling documents does not lend itself to this approach. Instead, the party must have essentially an industrial plan or process that can be replicated and modified for each case. The party must be prepared to put the documents in a high level database, and to perform electronic operations on the database to identify important documents. No small group of people can do the work necessary to handle a “big documents” case. Working on document production in a “big document” case is a specialized practice of law. The lawyer must negotiate the terms of what the searches will entail and how they will be produced. The lawyer must also work with the court to finalize the discovery plan, and he or she must supervise discovery to make sure the right documents are being produced. And the lawyer must be able to use technology to identify and cull important documents from the thousands at issue. To this end, the lawyer must be able to work with discovery contractors at each step of the process.
The discovery law firm must be able to marshal the resources needed to do the job. In my last case, for example, we had to arrange for a panel of lawyers to review documents for responsiveness. The discovery lawyers had to be able to explain discoverable materials to this large group so that they reached the right conclusion about documents (that had already been electronically culled).
The obvious objection to this approach is its expense. No doubt production in a “big document” case will be very expensive. But this leads to two observations. First, experienced counsel is worth it because of the negotiations that go into discovery in such a case. Such counsel should be able to limit discovery and thereby save money. You could ask your counsel for a budget, and that might also save money. Second, it is better to do things right the first time rather than end up going backwards. Working with experienced counsel from the beginning will save money in the long run.
I hope you find this short post to be helpful in thinking about electronic discovery. I want to express my appreciation to Elleanor Chin, an attorney concentrating in discovery matters, at the Oregon Department of Justice for her helpful comments on these issues.
With more than three decades of experience in these types of issues in Oregon, we have a deep understanding of how regulations can intersect with land use issues and development projects. For a consultation with our Portland office, call or email us directly.