Today Exterro hosted a webinar on Reducing E-Discovery Costs Without Sacrificing Defensibility. Follow the link to view the webinar on their site. The webinar was particularly interesting because the Senior Associate General Counsel for Electronic Discovery at Walmart, Aaron Crews, was one of the commentators. His thoughts reflect the approach to electronic discovery at the world's largest company - a specialist in providing discounted products. Crews observed that to achieve cost savings without increasing risk, it's necessary to build a process for every case - must be enough space to modify a process so that it applies to a given a case. He said that following a cookie cutter approach was a mistake because one must act based on the issues in a case, and figure out what specific steps need to be taken. An eDiscovery process which is not customizable, may not be defensible.
Crews also remarked that documenting the steps taken during electronic discovery brings one "90 % of way" to reasonableness, so long as the process itself is not wholly derelict.
Focusing on proportional eDiscovery parameters under FRCP 26(b)(1) is a means to save a lot of money and get merits based outcomes faster in Crews' opinion. He also noted that the surest way to get an objection to a discovery request shot down in court is to tell a judge flatly that production will be too expensive or too technically difficult. In Walmart's view, it's imporant to come prepared by having tested proposed keywords or sampling the data sets for suggested custodians, so you can argue in a hearing that certain requests will not be fruitful.
Crews also observed that most organiations have a preferred communication pathway, whether it's email , a collaboration site for conversation, or something else. In his belief it's very important to pick one pathway and stick with it. There must be real time documentation of the eDiscovery process, that records and channels the communications of tech, legal and other departments. Routinized meetings are a good way to make sure issues are addressed soon after they come up.