Discovery Resources

by Conrad J. Jacoby, Esq.

In July 2008, The Sedona Conference®, a non-profit legal think tank well-known for its Sedona Principles regarding preservation and production of electronically stored information in civil litigation, released The Sedona Conference® Cooperation Proclamation.  In it, the Conference suggests that overly aggressive (e.g., “scorched-earth”) discovery tactics reflect a misunderstanding of lawyers’ duty to provide effective advocacy for their clients. Instead, the Proclamation calls on lawyers to work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute. 

The Cooperation Proclamation challenges lawyers to rethink their litigation roles and strategies.  The Proclamation notes that continue…

by Conrad J. Jacoby, Esq.

Harvesting electronically stored information (“ESI”) using forensically sound collection techniques is a slow—sometimes painfully slow—process.  Clients and lawyers alike are strongly tempted to find alternate methods for collecting potentially relevant data, both to move discovery ahead more quickly and also to reduce the hourly charges incurred by collection teams.  After all, generally speaking, the vast majority of data collected in a forensic image isn’t relevant in any way to the underlying legal dispute and will be filtered out at the earliest stages of data analysis.  Why bother to collect all that information in the first place?

Critics of forensic collection have a point, of course, but their continue…

by Conrad Jacoby

As has been made explicitly clear in the Federal Rules of Civil Procedure, relevant information is potentially discoverable, regardless of where and how it has been stored.  As a consequence, traditional definitions of “document” no longer match real life, since relevant information may be as likely to be stored in a database entry or a chat log as in standalone word processing documents. 

This new awareness of information relevance is forcing legal teams and their clients to update their document preservation procedures, especially with respect to potentially relevant electronically stored information (“ESI”) that is stored on specialized computerized devices like mobile phones, PDAs, and Internet appliances.  These small devices continue…

by Conrad Jacoby, Esq.

The cost of reviewing discovery document collections for relevance and privilege dwarfs just about every other segment of the litigation fact discovery process.  Taking depositions?  They consume almost no time compared to the effort required to review the average document collection.  Expensive expert witnesses?  Except in highly specialized situations, expert work, too, amounts to only a fraction of the cost of having law firm associates and paralegals review 100,000 (or 200,000 or 2 million) e-mail messages and loose documents for content. 

Review costs are directly related to the number of documents that must be reviewed, so one of the most fundamental strategies for containing discovery costs is limiting continue…

by Conrad Jacoby

Preservation is the foundation for effective management of discovery materials—hardcopy and electronic alike.  After all, documents that are not preserved cannot be examined for potential relevance.  Courts routinely punish parties that have failed to preserve potentially relevant evidence—even though, as a statistical matter, it’s overwhelmingly likely that documents within an organization are supportive of the producing party’s position and not the “smoking guns” requesting counsel dreams of finding. 

Statistics, of course, only speak to trends across larger data populations.  Litigation is full of disputes in which a producing party was able to identify—and destroy—key documents while leaving other materials intact.  For example, the older case of Carlucci v. Piper continue…