As electronic discovery becomes increasingly important in litigation, it is crucial to develop solid electronic discovery best practices and guidelines for use before and during litigation. Litigants should carefully evaluate collection methods to avoid altering, damaging or destroying information that may be relevant to the case at hand. Judges expect counsel to agree on the format of production and for parties to seek judicial intervention only when an agreement cannot be reached after discussion. Judges also expect litigants to try to contain the costs associated with e-discovery, perhaps by hiring an e-discovery company, and are insisting that litigants take reasonable steps to avoid the inadvertent production of privileged information.
One e-discovery guideline to follow is to document any efforts to cull privileged information from production, and verify the process through quality control at different stages of the review. Another e-discovery guideline is to consider a non-waiver agreement regarding inadvertent production of privileged data, and asking that the agreement be entered as a court order.
One of the biggest complaints litigants and judges have regarding e-discovery is the cost of reviewing and producing electronic information. For this reason, new e-discovery guidelines should include a formal effort to gain knowledge of technology developments that can reduce discovery costs, and stay aware of the evolving best practices regarding ESI review.
Early Discussions Regarding Costs
E-discovery guidelines should also recommend that the costs and burdens of producing electronic discovery be discussed between the parties as soon as possible. If the costs for producing e-discovery will be significantly higher for one litigant than the other, the parties might consider an allocation method for the costs. If agreement cannot be reached, the litigants should seek the court’s assistanceas early in the case as possible—ideally before any disputed costs are incurred.
One important thing to remember regarding electronic discovery is that courts may issue sanctions for intentional or negligent spoliation – the destruction of, or failure to preserve, ESI. A crucial e-discovery guideline is to determine what information may be relevant to the litigation as soon as the preservation duty is triggered, and take steps to protect that information immediately.
The growth of ESI, along with changes in e-discovery rules, has resulted in the need for more companies to institute e-discovery guidelines to avoid the risk of sanctions during litigation. Advanced Discovery, a premier e-discovery vendor, offers these guidelines to assist companies in establishing their own e-discovery guidelines. Comments on these guidelines are welcome and encouraged. For more information on e-discovery guidelines, visit www.advancediscovery.com.