ESI is “electronically stored information” or digital data. The relatively new reality of U.S. litigation is that some degree of knowledge of ESI is critical for every legal matter for every lawyer.
“E-discovery” is a particularly nasty sub-part of the ESI beast; it is the management of ESI in litigation — that is, in the adversarial context where opposing counsel will exploit false steps, slips, and lapses with a vengeance.
We came across a 35-year veteran large Minneapolis business litigator this past week who said that “e-discovery” is the single worst development, as far as he is concerned, over the span of his entire career.
Have a look at the linked ESI protocol from the monster-of-a-case of St. Jude vs. Muddy Waters (previously discussed here). The protocol has some interesting bits negotiated by some of the country’s most sophisticated lawyers, law firms and, presumably, their in-house IT experts (or specially retained outside vendors).
Within 45 days of requests for production being served, the producing party shall propose a list of search terms to use in locating responsive material. The requesting party may propose additional terms, and the parties shall confer in good faith to finalize a search term list.
In our experience, it is the requesting party that has been first responsible for devising a list of search terms. But it makes sense that the producing party and not the requesting party — the one with superior knowledge of the data being searched — should generate the search terms in the first instance.
Putting aside the interesting pointers that this protocol gives all civil litigators, looking at the complex technical details, we also wonder out loud, “How is a solo lawyer or a small non-technologically outfitted law firm supposed to deal with ESI?”
There is no single answer. Case-by-case analysis is required. Having said that, here are things to think about:
When do you need to do something about e-discovery?
While every single legal matter will involve ESI as surely as it will involve text messages, emails, and/or telephone calls, every single legal matter will NOT involve “e-discovery.” Take, for example, a lawsuit over a $25,000 services contract in which the dispute is essentially whether the service-provider’s work was adequate. While the parties might exchange the contract and written communications related to the contract in electronic form (e.g., PDF’s), in light of the amount of money at stake and, often, the limited number of relevant documents, full-fledged e-discovery will be overkill and in no one’s best interest.
Christine Chalstrom of Shepherd Data has suggested the following rule of thumb: if a lawsuit involves more data than you and your law firm can review in a single day, you probably want to do something more about e-discovery than simply exchanging PDFs with the opposing party.
What options do solo/small firm lawyers have when dealing with e-discovery?
There are many e-discovery vendors and the choices and decisions can be overwhelming.
For what it’s worth, here are descriptions of some resources that LEVENTHAL pllc has had experience with:
Relativity is by far the most common e-discovery platform now used. Shepherd Data has earned Relativity “best in service” recognition. Pricing is “per gigabyte” of data, plus monthly license fees for the number of users a customer needs, plus hourly rates for Shepherd Data technical assistance along the way (needed, for example, in connection with loading ESI into Relativity and getting out productions of ESI to opposing parties).
Relativity through Shepherd Data also has add-on premium features (such as some computer-assisted review tools) available for added cost.
Everlaw, a much newer e-discovery supplier, is another resource we have tried. It differs from Relativity in some key respects. In our use of the two platforms, Everlaw has been faster. In searching a database, speed is extremely important.
Everlaw also has a more intuitive user interface than Relativity, so the learning curve for using the system is shorter.
In addition, Everlaw pricing differs from Relativity. Pricing is simply “per gigabyte.” There is no extra charge for Everlaw customer service/technical assistance, which is particularly important in the early stages of use but is useful throughout use of the platform. Everlaw technicians help in devising searches, in advising about document collection and document production.
Finally, Everlaw has released the capability to do “self-serve” uploads and productions. This, of course, saves time and money.
If you use other e-discovery tools, please add comments! What works? What doesn’t? What lessons or advice can you share? Given the number of vendors and their extremely uneven quality or cost-benefit ratio, there can never be too much solid information for civil litigators and their clients.
[Full disclosure: Shepherd] Data is a sponsor of the Minnesota Litigator blog. Everlaw provided a trial use of its product to LEVENTHAL pllc and a Leventhal family member is an Everlaw employee.]