Try Not to Let
the Gigabyte You: How Small and Solo Law Firms Are Leveraging
Electronic Discovery to Cut Costs, Save Time, and Win More Cases
By Michael Swarz
By now the news that the recent electronic discovery
related amendments to the Federal Rules of Civil Procedure
(FRCP) have become a reality are old hat to most small
and solo law firms. What matters more to small shop
attorneys is how to overcome the substantial hurdles that
the new rules place on their firm.
To start, there are the high costs that a small firm
may incur when obtaining vital electronic stored information
(ESI) to be used as evidence. How can a small firm curtail
ediscovery expenses? Next, a large firm may deliberately
bog down a solo practitioner with superfluous discovery
to diminish the solo practitioner’s fiscal and
personnel resources. Are there simple methods to manage
voluminous amounts of data? Finally, a small firm may
be required to work with an outside electronic discovery
expert to assist in reducing the extent of a data search,
assess what discovery should be ready, or advise on
which format the discovery should be produced in. When and
how does a small firm engage electronic discovery experts?
Whether and how small and solo law firms grapple with
these issues can—and will—determine whether
their next case that involves ediscovery fails or succeeds.
Strategies to Lower Your Firm’s Ediscovery
Price Tag
Step one to lowering the costs of electronic discovery
for small and solo law firms is always education. Only
by comprehending completely what ESI is available during
discovery and how it is transmitted and stored will these
firms be able to slash their discovery expenses. This
understanding must include how the data is stored, how
it can be searched, and which format it is stored in. Having
this knowledge is powerful, especially when competing
against a large firm. It will enable the small firm to
effectively and proficiently attain the needed discovery
in a time- and cost-effective manner.
One relatively low-cost method for small and solo law
firms to learn about ESI is to conduct some basic Internet
research. In addition, there are numerous experts, as
noted below, to consult with on issues that relate to
ediscovery. Take a look at their websites to get the gist
of relevant terminology and the ediscovery sphere the
firm will be walking into. Talking with any technologically
savvy colleagues the firm may have about electronic data
will help as well in gaining the knowledge necessary
to take on the large firm.
After your firm has a grasp on the electronic data needed,
have a conversation with the firm’s information
technology expert. At this point make sure to ask the
IT expert to go over how email is maintained, the variety
of available backup systems, and the meaning of deleted
files. Only then should questions that relate to the
case be asked of the IT professional. When conducting
this conversation, be sure to ask about the universe
of data that may be available and compose a plan of action
to retrieve the data. Performing internal industry research
and using the know-how of the firm’s IT professional
are low-budget, low-effort ways that small and solo firms
can easily capitalize on to obtain excellent results
from the important data the case needs, no matter the
opponent.
Next, to lower ediscovery costs, small and solo law
firms must settle on the scope of electronic data to
be examined. Small firms must pinpoint their needs and
determine which evidence is necessary to win the case.
Once this information is determined, small and solo firms
will then know whether the ESI in question will indeed
help the case.
To know when to go after a specific email, thumb drive,
or laptop, small and solo law firms need to take a step
back and plan their electronic discovery strategically.
Think about it this way: Plain and simple, if the case
lacks a foundation, it will crumble. To create this foundation,
the small firm will need to effectively use all of the
arrows in its proverbial discovery quiver to outwit a
larger firm with more resources. These are inspections,
requests for production, interrogatories, depositions,
and requests for admission. Being smart as to how and
when to use these tools before jumping into ediscovery
will help small firms determine whether a particular
piece of ESI is a must-have or a can-do-without.
Once the firm has an understanding of what ESI is available
and which ESI it needs, the amount of ediscovery to be
conducted will be minimized. As a result small and solo
law firms will reap the financial rewards of lower ediscovery
costs and a preservation of firm resources. Be sure to
request only the ediscovery essential to the firm’s
comprehensive, strategic discovery plan. This will substantially
minimize the firm’s prospective expenses, the time
spent squabbling over these points, and the enormous
number of hours the firm will need to allocate reviewing
data that may be completely useless to the case.
Email, Spreadsheets, Hard Drives . . . and More
Email: Is There Even a Needle in This Digital Haystack?
A central tenet to any winning discovery plan is to know
exactly what information is necessary to win the case.
Of course, the flip side is also equally true. Realizing
what data is not needed is equally critical to avoid
wasting valuable firm time and resources. In order to
realize the difference, small and solo law firms must
focus only on what its needed to succeed. Furthermore,
with the recently revised FRCP amendments, small firms
will need to have a handle on these issues earlier on
in the case lifecycle. Being proactive will help them
avoid situations that will pointlessly slow down the
case by obliging the firm to enter into a pricey ediscovery
journey that will not get it any closer to its objective.
The FRCP amendments require all firms to discuss their
ESI with opposing counsel during the initial scheduling
conference. With the timing pushed up in Rule 26, firms
are forced to make decisions early on as to what data
they pursue. In particular, small and solo law firms
should seize on the scheduling conference and use its early
occurrence to their advantage against larger firms by
using their learned knowledge of ESI to pin the other
side down early. In other words, set the terms with the
other side by having a detailed, well-thought-out ESI
battle plan for deployment before walking into the that
first scheduling conference. By doing so, small and solo
firms will have effectively narrowed the issues to which
they can be obligated to produce and review documents
and learned, early on, what their opponent’s ESI
position is. Consulting with the firm’s IT professional
will be invaluable at this stage to estimate production
costs, draft discovery requests with the required amount
of technical specificity, and evaluate the other side’s
data systems.
Once within the initial Rule 26 conference, small and
solo firms should focus on opposing counsel’s ability
to preserve evidence. This includes the quantity and
types of ESI in play as well as the name and location
of any pertinent backup systems. Becoming familiar with
the electronic storage systems before the conference
is paramount in order for an ESI discovery plan to be
properly discussed at the conference. To avoid
ESI glitches along the way, small and solo firms should
take their IT professional to the conference and suggest
that their opponent follow suit.
To further limit the amount of data opposing big law
can send out, small and solo law firms should clearly
state the format of production that will produce the
optimum outcome for their case. FRCP Rule 34(b) grants
parties this ability to designate the format for production.
When the initial Rule 26 conference has concluded, small
and solo firms should have a better grasp of what format
to employ when requesting their discovery. Should the
format of production not be clearly stated in the discovery
request, small and solo firms must be advised that their
then opposing counsel can demand the format in which
it will provide the ESI. This will allow opposing counsel
to produce the ESI in a reasonably usable format or as
normally maintained—both of which may or may not
be the best format for a small and solo law firm’s
case.
Needless to say, small and solo law firms need to then
conduct their internal research to determine the drawbacks
and benefits to each format in order to succeed. This
know-how involves mastering the four formats commonly
used for the production and review of ESI. They are the
following: native files (that is, in the form that the
files are ordinarily kept on their source computers and
storage media); printed paper; online repository tools
containing responsive documents; and litigation support
load files, TIFF images, extracted text, and metadata.
Knowing which ESI formats will be most beneficial for
the case while keeping costs down will give small and
solo law firms a leg up over their large-firm competition.
Finding the Right, Affordable, Technology Expert
An effective and low-cost method for small and solo law
firms to retain basic IT expertise is to educate themselves
on the options available in the their local talent
pool. This grouping may include university professors,
IT personnel at midsized businesses, and graduate students
from local IT technical institutions. These low-cost
resources should not be ignored, as they represent
effective ways for small firms to leverage IT expertise
when challenging larger firms. These individuals will
more than likely agree to work at a rate lower than
conventional IT experts and on a part-time basis. Small
and solo law firms should consider utilizing them as
a nontestifying expert and maximizing their know-how
to resourcefully gather the data needed from the opponent’s
ESI.
For more extensive ESI advice, small and solo law firms
should look to a competent and affordable ediscovery
expert for guidance. This individual will give the firm
an in-depth understanding of the relevant data systems
and what types of information that is being sought by
the opponent. Although bringing on an ediscovery expert
may be counterintuitive to minimizing expenses, allocating
a little on an ediscovery expert will save small and
solo law firms a lot long term. Similar to any case,
small and solo firms should seek the best expert available
within their means. Just as a firm would not take on
a medical malpractice case without conferring with a
medial expert, it should not step into the world of ESI
without a qualified, knowledgeable ediscovery expert.
The recent FRCP amendments, coupled with the intricacies
of ediscovery, make retaining an ediscovery expert at
the early stages of the case a priority for small and
solo law firms. In order to make the commitment to bringing
on board an ediscovery expert affordable, think about
alternative payment options with the expert. Small and
solo law firms can settle on a flat rate fee per case
or decide to simply have the expert on a retainer if
they have a substantial caseload. In addition, ediscovery
experts often employ knowledgeable junior associates
at a lower rate. Small and solo law firms should be sure
to request that their ediscovery expert have their associate
work on their project in order to reduce expenses.
Challenge or Opportunity?
Recent changes to the Federal Rules of Civil Procedure
as they relate to ediscovery present unique challenges
and opportunities to small and solo law firms. These
hurdles are felt most acutely when allocating budget
and resources to manage ESI. With thoughtful preparation
and the usage of a qualified IT or ediscovery professional,
small and solo law firms can use the FRCP amendments
on ediscovery to substantially augment the quality
and quantity of discovery when opposing larger firms.
The key to triumph is to not to shy away from these
new rules or from contemporary ESI technologies. On
the contrary, small and solo firms should embrace the
new reality and prevail with it.
* Michael Swarz, J.D., is based on Los
Angeles, California where he serves as VP of Marketing and Operations for
eClaris, Inc. eClaris is a dynamic
electronic discovery consultancy and service provider dedicated to helping law
firms and corporations classify, process and review® electronically stored information. He can be reached at mswarz@eclaris.com by phone at
213.840.7109 or through www.eclaris.com.
© Copyright 2009, American
Bar Association.