16. E-Discovery for Large-Scale and Complex Litigation
a. Ensuring Quality Control
i. Refer to The Sedona Principles Best Practices for Addressing Electronic Document Production and Best Practices for the Use of Search and Information Retrieval Methods in E-Discovery
ii. Victor Stanley v. Creative Pipe – Judge Grimm held that a privilege claim on inadvertently produced privileged documents was waived because of lack of QC to show their production was inadvertent.
1. Failure to show keyword search was reasonable.
2. Not showing qualifications of person who devised search terms.
3. Not showing how what was done was sufficient in the context.
4. Failing to show quality assurance testing.
b. The Project Management Process
i. Refer to The Sedona Conference Best Practices on Achieving Quality in the E-Discovery Process
ii. For a successful outcome:
1. Make sure team understands requirements of the case.
2. Use well defined methods
3. Measure results for accuracy.
c. Educating the Court about Your ESI
i. Refer to the Manual for Complex Litigation which describes how federal judges may employ certain methods and discusses ESI discovery issues.
ii. The initial conference under FRCP Rule 16 must take place no later than 120 days after the defendant has been served or 90 days after the defendant has appeared.
d. An identification System
i. Bates numbering
e. Form of Production
i. The Manual favors production of ESI in electronic form rather than paper.
f. Document Depositories
i. If the cost is too great:
1. Can ask the court to allocate some costs to opponent.
2. Use a pay-as-you-use system.
3. Ask the judge for special arrangements.
g. Avoiding Judicial Resolution
i. Informal production of documents and search protocols.
ii. Consider a rolling discovery schedule.
iii. Clawback or quick peek agreements
1. Quick peek – snapshot of ESI for establishing what is in possession and what format it is in; privileged or protected ESI must be returned.
iv. Statistical Sampling
1. Search protocols with quality control and assurance so software based searches can be run instead of manual review.
h. Scope of Accessibility
i. FRCP 26(b)(2)(C) court can limit discovery if:
1. Burden or expense outweighs the likely benefit, the amount in controversy, party’s resources, importance of issues at stake, and importance of discovery in resolving issues.
2. Discovery is unreasonably cumulative or duplicative and can be obtained from another source which is more convenient, less burdensome, or less expensive.
3. There has been ample opportunity to obtain the discovery.
i. Good Cause Inquiry
i. The court will consider these factors in evaluating if there is good cause to produce ESI that is not reasonably accessible:
1. Specificity of the document request.
2. Quantity of information available from other sources.
3. Failure to produce relevant information that is likely to exist or have existed and is not available from more accessible sources.
4. Importance of the information being sought.
5. Importance of the issue that ESI concerns to the outcome of the case.
6. Party’s resources.
ii. The court will consider a rejection by a party of a cost sharing offer to be evidence that the party doesn’t consider the ESI to be that important.
j. Cost Shifting
i. Zubulake Judge Scheindlin’s 7 factor test.
1. Is the request specifically tailored to discover relevant information?
2. Availability of the information from other sources.
3. The total cost of production, compared to the amount in controversy.
4. The total cost of production, compared to the resource available to each party.
5. Relative ability of each party to control costs and its incentive to do so.
6. The importance of the issues at stake in the litigation.
7. The relative benefits to the party of obtaining the information.
k. Selecting Experts or Consultants
i. Request for Information (RFI)
ii. Request for Proposal (RFP)
1. Measurements of vendor performance.
2. Assure that the most up-to-date technology will be used.
iii. Contract Negotiation