The challenge in developing a solid discovery plan is that it will take place very early in the litigation process. In many ways, the success or failure of the case will depend entirely on how well counsel, the client, and any outside vendors think through the process. Once the discovery plan is agreed upon, it can be very difficult to negotiate changes. Just one or two wrong concessions in a discovery plan can literally bankrupt the client if the other side insists on, and obtains, compliance. In a case that involves a considerable amount of ESI, counsel is essentially being forced to outline the entire case strategy and what expenses will be created in the discovery plan.

The scope of the document base

Both sides to any e-discovery case will be involved in determining what ESI will be requested from the other party and how that they will respond to the other side’s request for ESI.

What do you need? Focus on what information you need. Avoid the temptation to request all information that an opposing party may have with the hope that you can sort through the information later and find what you want. This in all probability will make the job of finding what you need much more complicated and expensive. Not all of those costs will fall on the other side. You may be presented with more data to process than your own computers can process in a year. Try to focus on what you need to win the case. The same rule is true for your own client’s documentation. Do not rely on the other side to figure out what you need from your own client. The smaller the “pile” of documents that needs to be sorted and filtered, the easier and faster the task will be — and the chances of finding what you need will increase.

Keep in mind that some clients may generate more ESI for a given case than your law firm can store on its own. In fact, the data to be processed may exceed all of the data that your law firm has residing on your own system. The cost of trying to process a large case can quickly exceed your own firm’s IT budget. If that is the case, then it is clearly time to hire an outside vendor. For very small cases, you can try to handle the matter in house if you have trained staff and the necessary hardware and software and if chain of custody or forensic issues will not be raised. Even in this circumstance, it is strongly recommended that in order to preserve the integrity of the ESI, access to the data should be strictly limited. You will also be responsible for making sure that you protect the data by conducting regular backups.

Who may have been involved? Which employees are likely to have handled ESI that is relevant to the case? Are there non-parties who have information that you need?

When may have relevant ESI been created? What is the time frame that you are looking at? Don’t request documents that predate the dispute unless there is a reason. Also, how long into the future will both the litigation “hold” and the duty to supplement discovery continue?

Where is relevant ESI likely to be found? In order to answer this question, counsel and their consultants need to find out how data is handled by the client.

Special Issues

After you determine the broad scope of the document production, there are some additional concerns that need to be discussed:

Are there privilege and confidentiality issues? How many documents are likely to include documents subject to the attorney client privilege? Whether the client works with other law firms and whether it has in-house counsel may complicate this determination. The names and e-mail addresses of any such attorneys will help sort out potentially privileged information. The presence of confidential and privileged information may significantly increase discovery costs as each document will have to be scanned individually and/or through the use of software “filters.”

Will there be cost shifting? Keep in mind that some litigation is asymmetric. This means that what is easy to do for one side may financially ruin the other side. This is not necessarily a “large company vs. small company” paradigm. A small company with hardly any ESI can impose huge costs on a much larger company that is burdened with massive amounts of relevant ESI. Employment litigation is an area where the “little guy” is at an advantage. He or she has almost no ESI and the former employer may have a great deal of discoverable ESI.

If your client will be unable to comply with otherwise reasonable e-discovery requests due to extremely high costs, then some courts have provided that the requesting litigant may have to pay for the cost of that particular request. Counsel is advised to try to identify any asymmetrical costs before signing a discovery plan. If opposing counsel is unwilling to absorb some of those costs, then this is an issue that may need judicial intervention. Cost shifting is governed by Rule 26 which indicates that a party “need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B).

Is there a need for forensics? If either side wants a clear chain of custody for gathered ESI, or if there will be questions as to whether a party manipulated, forged, or deleted data, then a forensics expert may need to be hired. Be aware that forensic analysis can be extraordinarily expensive. The cost to image or duplicate the hard drives in a very small business can easily run into the tens of thousands of dollars. The forensic expert may have to fly to each IT location and take physical possession of the hard drives. Neither the lawyer nor the client can insert themselves into this process or the chain of custody will be broken. The software used to make forensic copies cannot alter any system or metadata. What this means is that the expert will actually copy every byte on the hard drive in the exact order that they are found. This will capture both deleted data and active files. Never underestimate the ability of forensic firms to recover deleted or damaged data. Kroll Ontrack, a national vendor offering forensic services, was even able to recover important research data on a hard drive that had come down with the debris from the U.S. Space Shuttle Columbia in 2003.

How will you handle metadata? There are two types of metadata. System metadata includes data that a computer operating system compiles regarding a file’s name, size, location, and the date the file was created, modified, or last accessed. Application metadata is familiar to most lawyers as the additional information contained in, as an example, Word documents. This type of metadata shows changes to the documents and keeps a running history of those changes. The former type of metadata is what is usually referred to most often in e-discovery cases. The discovery plan needs to include an agreement on which metadata will be preserved.

— James Pray