PRACTICE POINTERS
Tips for Cost Effective Discovery BY STEFANIE SCOTT SHAH can be avoided. Here are a few tips to streamline the process and save you and your client time, money, and headaches.
Shah is the founding member of Scott Shah Law. Her practice includes complex commercial, patent, and employment litigation. Additionally, she acts as outside general counsel for growing businesses, handling all their legal needs. She can be contacted at stefanie@scottshah.com.
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iscovery is expensive. I know this. You know this. The attorney down the hall who has never stepped inside a courtroom knows this. A (very dated) 2008 study by the Institute for the Advancement of the American Legal System estimated that discovery costs approximately $3.5 million for a “midsize” case. A (dated) 2012 RAND Institute study found that it costs a total of $18,000 to review a gigabyte of data. Given the general shift in maintaining documents in electronic, rather than hard copy, format, it’s safe to assume there exists even more potentially discoverable documents in any given case today than there did ten years ago. So it’s not surprising that, to this day, discovery remains one of the most expensive aspects of litigation. Some clients can afford to pay for a no-holds barred discovery fight; some clients cannot. But no client wants to waste resources on the discovery process if it 24
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Know What You Want It’s true that you won’t necessarily know what documents the opposing side has in its possession, custody, or control. But you should know what discovery (at least at a high level) you need to win your case and/or to encourage settlement. Draft discovery requests to specifically seek these documents/information and refrain from catch-all document requests. In response to a truly overbroad document request, the responding party is likely to either (1) object that the request is overbroad and refuse to produce documents or (2) produce mounds of documents—in an effort to both hide the damaging needles (i.e., documents) in the proverbial document haystack and burden the requesting party with a lengthy review of documents. Negotiating ESI Agreements In negotiating the electronically stored information (ESI) agreement, you want to consider all the documents you will need to review; this includes both documents you are going to produce to the opposing party (a review of which is necessary to protect privilege and refrain from producing potentially harmful documents that are not responsive to a discovery request) and documents that are produced by the opposing party. After doing so, work with opposing counsel to determine the relevant custodians of record and to limit searches to specific Boolean queries. Negotiating an ESI agreement early in the process can drastically reduce the number of documents being reviewed by both parties and, as a result, simplify discovery.
Negotiating an ESI agreement early in the process can drastically reduce the number of documents being reviewed by both parties and, as a result, simplify discovery. Is It Worth the Fight? Lawyers have a tendency to argue for the sake of arguing, especially if they think the law is on their sides. You might know, for example, that in Texas state court, an interrogatory is an improper vehicle to seek information regarding testifying experts. However, when the opposing side seeks to compel this information, you should consider whether the battle is worth the fight—particularly given that the information eventually will be disclosed during the discovery process and that compromising on this point could give you leverage in a battle that is actually worth fighting. Similarly, carefully think before filing and arguing a motion to compel. Courts do not appreciate discovery battles and, unless the other party is acting egregiously, you are often better off working through these differences with the opposing side. Don’t Be Afraid of AI (and other discovery tools) Artificial intelligence is the future. Don’t be afraid to understand AI and leverage it (and other discovery tools) in conducting document review. The 2012 RAND study mentioned earlier found that approximately 73 percent of the cost of producing electronic documents was attributable to the review of documents for relevance, responsiveness, and privilege. If you use third party vendors—including those with AI capabilities—in your document review, you will cut
down on attorney hours and save your client money. Request Cost-shifting If you are unsuccessful in negotiating a streamlined discovery process with opposing counsel (and the requested electronic document production is particularly onerous), consider filing a motion for a protective order under Federal Rule of Civil Procedure 26 and asking the court to shift costs. In 2015, Rule 26 was amended to permit cost-shifting, in an effort to make the discovery process more “proportional.” Although it is presumed that the responding party will bear the costs of its electronic production, the court can shift costs to the requesting party if the requested discovery violates Rule 26’s proportionality test. In determining whether discovery warrants cost-shifting, federal courts have analyzed, inter alia, the following proportionality factors: the needs of the case; the amount in controversy; the parties’ resources; the importance of the issues at stake; and the importance of the proposed discovery in resolving those issues. Of course, as with motions to compel, seek cost-shifting sparingly. The Advisory Committee Notes explain that the Rule 26 amendment was designed to explicitly recognize courts’ authority to shift costs, not to make cost-shifting the new norm. If you think outside the traditional discovery box, you can successfully craft a cost-conscious plan that your clients will thank you for—or, rather, would thank you for, if they knew the AUSTIN LAWYER AL AL alternative.