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ADVANCING TECHNOLOGY and cloud-based document management services makes e-discovery a practically unavoidable element of litigation. Managing discoverable electronically stored information (ESI), as a result, carries its own added costs and considerations. Not every case needs or would benefit from the services offered by an e-discovery vendor. But using an outside e-discovery vendor, in some instances, can save a client money and save its counsel information management headaches.
NG Solutions is a third-party, legal and business services provider, who provides e-discovery case support. If yours is a case that can benefit from use of an e-discovery vendor, NG Solutions offers a few tips for keeping costs down and avoiding surprises.
- First, NG Solutions recommends that you address e-discovery issues early. An attorney who procrastinates invites problems and litigation challenges. Delays can influence a case’s bottom line by increasing e-discovery vendor costs. Whether a vendor charges on a per gigabyte basis or charges a flat fee, the less time a vendor has, the more its services are likely to cost.
- Second, keep lines of communication open. A failure to communicate can present a host of issues, ranging from incurring unexpected fees, to more negative outcomes, such as failing a party’s discovery obligations and the imposition of sanctions.
- Third, between an individual plaintiff and a corporate defendant, it is traditionally the later, having most the relevant data, that carries the largest discovery burdens. But NG Solutions notes that this asymmetry is fading. The weight of discoverable data may always tip toward the corporate defendant. But as the type of discoverable data (like text messages) and the volume of discovery data (thing cloud storage) continues to expand, so too will discovery obligations for individual plaintiffs. (See e.g., See Montgomery v. Iron Rooster-Annapolis, LLC, Case No. 16-cv-3760, 2017 WL 1902699, at *2 (D. Md. May 9, 2017), ECF No. 53, adopted by ECF No. 62.)
Analyze the e-discovery implications for your case early, before filing if you’re plaintiff’s counsel, and before answering if you’re a defense counsel. The U.S. District Court for the Western District of Washington offers parties the use of a “Model Agreement re: Discovery of ESI.” Even if your case is not pending in that venue, the Model Agreement includes ESI Procedures that can be helpful for understanding e-discovery in your case, such as the use of potential search methodologies, identification of custodians, and the scope of ESI retention.
Finally, ignorance of e-discovery procedures is not a defense for failing to satisfy discovery obligations. An attorney needn’t be a software engineer to satisfy ethical obligations, but according to Comment  to the ABA’s Model Rule 1.1 (Competency) attorneys must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
And in California, the Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of the California State Bar opines that an attorney may violate ethical duties of competence by failing to understand and perform e-discovery skills. (See also HM Electronics, Inc. v. R.F. Technologies, Inc. (S.D.Cal. 2015) 2015 WL 4714908.)