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DETAILS

Salmon

Susan Salmon is an attorney with the Tucson office of Quarles & Brady, LLP. Salmon practices primarily in the areas of commercial litigation and products liability and serves on Quarles & Brady’s records retention and e-discovery team. She advises clients on electronic discovery issues and writes for the firm’s blawg, “E-Discovery Bytes.” Salmon also has significant expertise in representing clients in a broad spectrum of commercial litigation matters, from simple, two-party breach of contract actions to complex, multi-party litigation involving various contract, statutory, and tort-based claims.

Before joining Quarles & Brady, Salmon spent five years with the law firm of O’Melveny & Myers, LLP in Los Angeles, California, where she worked on several matters that raised early e-discovery issues. She is admitted to practice before state and federal courts in both Arizona and California.

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Related Coverage

Cutting Your e-Discovery Costs (June 30, 2009)

Choosing From a Plethora of e-Discovery Vendors (April 21, 2009)

eDiscovery Rules for Document Preservation (March 3, 2009)

Fed Rule of Evidence 502 Affects e-Discovery (Feb. 3, 2009)

QUESTION

I’m in the legal department at a smaller public company. We have a fair amount of corporate litigation, and like lots of other folks, we’re going crazy with electronic discovery costs. I know the 2006 Federal Rules of Civil Procedure encourage a “meet and confer” approach to e-discovery, but I’m wondering if anyone has considered outright sharing the cost (and burden, and benefits) of e-discovery with opposing counsel. Am I nuts to contemplate this? Any advice on how to do it?

ANSWER

Not only are you not nuts; you’re in excellent company. In this economic climate, many of us are looking for ways to smarter, leaner, and cheaper. Lawyers across the country are asking themselves how to get the information they need, and how to protect themselves and their clients from sanctions, without spending more on electronic discovery than the litigation itself is worth. Following the traditional adversarial approach at every step of litigation may actually hurt your interests and cost you more money in the long run.

Collaboration is not about handing opposing counsel the keys to the kingdom. On the contrary, it’s about preserving your financial and intellectual resources for the really significant factual and legal battles that form the substance of the litigation, rather than squandering them on endless discovery disputes.

In considering whether an agreement to share costs is advisable, remember that the ordinary presumption is that, in electronic discovery, the responding party bears the cost of identifying and retrieving responsive documents. Nonetheless, thoughtful judges and jurisdictions across the country have supported (and even mandated) efforts to reduce and allocate costs through collaboration. Magistrates have ordered parties to agree to cost-sharing strategies at the outset of litigation, or even to develop and submit for court approval an early joint discovery plan with a budget proportional to the amount at issue in the litigation.

Even if you don’t ultimately agree to share costs outright, approaching opposing counsel early to develop a collaborative approach to e-discovery can provide substantial cost savings. Candor about the nature of your e-discovery universe and the costs associated with exploring it can often net you an agreement, for example, to narrow that universe to just a few custodians and key search terms, or to eliminate certain categories of electronically stored information (such as backup tapes or deleted files) from the search altogether.

If you approach the issue early and honestly, then when you suddenly find a stack of mysterious unindexed backup tapes in the back of a departed IT employee’s closet—and rest assured, something like that is bound to happen—you can have a reasonable conversation with opposing counsel about the costs and likely benefits of restoring and indexing those tapes without creating the impression that you’re scrambling to hide a smoking gun.

The Sedona Conference, always ahead of the curve on e-discovery issues, strongly endorses this collaborative approach. Its “Cooperation Proclamation” invites lawyers to abandon the traditional adversarial mode and work more collaboratively during the discovery phase of litigation. Some techniques the conference suggests include:

Exchanging information regarding relevant data sources with the opposing party or scheduling early disclosures on the nature and location of electronically stored information;

Jointly crafting search terms and search methodologies to identify responsive materials effectively;

Developing case-long discovery budgets proportional to the amount in controversy in the litigation; and

Agreeing to use special masters or other formal mechanisms to referee and resolve discovery disputes short of involving the court.

In these tough economic times, which have led companies large and small to cut their legal departments and litigation budgets, and with numerous jurisdictions starting to adopt rules encouraging cooperation and collaboration in discovery, collaborative discovery appears to be the wave of the future.

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