eDiscovery can make or break your case. It establishes the scope of litigation for both parties, the documents that must be produced, and the custodians to contact, among other important factors. In essence, the discovery process lays out the rules that lawyers must abide by during a lawsuit as they pertain to gathering, preserving, and sharing relevant documents. A single misstep at this stage could create a competitive disadvantage that will be all but impossible to overcome during the course of a lawsuit or trial.
That’s why it’s so important that attorneys come to their Rule 26 (f) meet and confer with a well-developed discovery plan that accounts for all the information and documentation they wish to obtain through a motion for discovery, without overextending their resources by agreeing to inequitable terms.
Developing a comprehensive discovery plan puts any case on good footing and dramatically increases the likelihood of a positive outcome. Here’s what every lawyer should consider when creating a discovery plan:
1) Agree on timelines for your discovery plan
As stipulated by Rule 26 of the Federal Rules of Civil Procedure (FRCP), each opposing party on a case is required to hold a meet and confer conference to discuss the discovery process in detail and agree upon specific discovery plan parameters and responsibilities.
One aspect of that is establishing a discovery plan and timeline which will set guidelines for lawyers on how long each side has to comply with any request for production. In many cases, the court will set deadlines for disclosure - 14 days is generally considered to be the default length of time for such matters. That being said, attorneys can - and often do - deviate from that standard when circumstances preclude them from adhering to it.
Courts will make exceptions to the 14-day default or their own individually set disclosure deadlines if there are valid reasons to do so. If a request for production is burdensome and unreasonable, then courts are likely to amend those timelines and extend discovery plan processes or outright reject that request.
It’s up to attorneys to argue their case for changing disclosure timelines by being as specific as possible with their concerns.
2) Provide a list of custodians
There are only so many custodians that can be included in a lawsuit or case, so it’s absolutely essential that parties do their research and create a list in their discovery plan of individuals who possess or have access to the documents that lawyers need to make a compelling argument.
The producing party should identify and interview custodians of potentially relevant information and prepare for initial disclosures. Keep in mind cost and proportionality - some local courts may even order that custodian count be limited to a short list. Identify people who seem the most likely to be called as a witness for depositions, whether by your side or the opposing party. Speaking with them can provide more information and lead to other individuals who might be relevant to the case.
Before your 26 f conference, it’s a good idea to prepare an internal list of custodians you think the other side may want to contact to see what documents are relevant to the opposing argument. Including that in your discovery plan will give you more opportunity to prepare a counter argument and respond to evidence against your client.
3) Lay out parameters for information disclosure
A major aspect of any good discovery plan - especially as it pertains to electronically stored information (ESI) - is establishing your statement what data should be included in the scope of the discovery process. As with other parts of discovery, lawyers should set reasonable expectations and remain mindful about the terms they agree to.
If data and search keywords are too limited in scope, this could cause unintended omission of relevant information, facts and evidence in the case. Conversely, an overly broad list of keywords may bury your team with an ambitious data volume to preserve and produce.
Next, never agree to search keywords until you've tested them against the actual data. Even if you have preliminary ideas on what information is relevant to your case, you don't want to limit yourself or lock yourself in to specific discovery plan requirements too early in the process.
4) Keep legal holds in mind
Litigation can stretch on for years, but that doesn’t mean legal parties can let their data preservation responsibilities fall by the wayside in the interim. Both parties are obligated to refresh data at set intervals - every 30 days, for instance.
Attorneys may need to go back to their clients to collect, preserve, and validate available information. In some cases, clients have the technical capabilities to do that themselves, but law firms may create legal holds internally or reach out to a third party. Creating an audit log is very helpful for demonstrating that your side has met all of your responsibilities regarding legal holds, especially if there is an issue down the line regarding credibility.
5) Make sure preservation methods are forensically sound
ESI discovery presents unique challenges for attorneys when it comes to data preservation. If legal parties fail to adhere to forensically sound preservation methods, they could be accused of changing metadata or otherwise altering documents and information. Even if that is not the case, legal teams could spend enormous amounts of time and money proving that they have acted in good faith and followed the law. This may include hiring an expert or consultant. Regardless, make sure to document and audit your collection process to ensure defensibility.
6) Define protective orders
During a civil procedure, attorneys may find themselves asked to produce documents that contain sensitive information, such as a proprietary product information key. Even when those documents are confidential, they must be shared with the opposing counsel if they contain probative value.
It is essential that clients have clearly defined protective order language in place to prevent that sensitive information from being shared with parties outside of legal counsel. Otherwise, confidential information could be read aloud in open court and become part of the public record.
Lawyers should screen client information as soon as they receive it, identifying documents that fall under protective orders and preserving them. This will make it far easier to exclude documents and data from requests for production at a later date. Legal teams facing tight discovery and disclosure deadlines can cut out a lot of work by preemptively eliminating sensitive materials from consideration.
7) Establish clear limits on scope of discovery
Neither side of a lawsuit wants to be inundated with documents that can’t help their case. It’s advantageous for everyone involved to narrowly define what information is relevant to a civil procedure or lawsuit and what documents they want the opposing party to produce.
Lawyers need to simultaneously expand the scope of discovery to include evidence supporting their argument while reining it in so they aren’t responsible for preserving, searching, and producing vast quantities of data. Specificity and proportionality are both important factors to consider when establishing those discovery parameters.
8) Account for court-specific rules
Beyond the guidelines listed in Federal Rule 26, lawyers must also consider any rules that are specific to the local court. Discovery motion requirements often vary from district to district - for instance, the number of custodians who can be deposed might be different depending on which state or county a lawsuit is filed. Make sure you research this information and read about different discovery plan requirements.
Again, when attempting to deviate from these discovery plan requirements, make sure to provide a specific reason for doing so. Local courts may be hesitant to provide an exception, especially if the opposing parties are in disagreement, unless there’s a compelling argument for changing the status quo.
Having a well-defined discovery plan will ensure that your legal team is fully prepared when you initially meet with opposing counsel. It helps maintain a clear focus on what the scope of the discovery plan and process should include and prevents attorneys from agreeing to production and preservation terms that could put them at a disadvantage.
For more information about your discovery plan, make sure to review our comprehensive eDiscovery Checklist Manifesto.
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