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Negotiating eDiscovery protocols: Part II

Sarah Brown 08 / 28 / 19

Expert Perspectives: The Legility Expert Perspectives series features insightful interviews with thought leaders, technologists, and leading legal innovators at the forefront of the global business and practice of law. In today's edition, we interview Geoffrey Geftman, Discovery Consultant in Michael Best’s Information Governance and Discovery Services team, on his recommendations for negotiating eDiscovery protocols. This is Part II of II - if you missed Part I, you can read it here!

Negotiating eDiscovery protocols: Best Practices

Q: What protocols exist for eDiscovery practitioners?

A: The best guideline I’ve seen is the Mandatory Initial Discovery Program. It’s a pilot program in the Northern District of Illinois and Arizona that outlines an expedited timeline for eDiscovery. Practitioners have 70 days from initial pleading to produce all electronically stored information (ESI). The biggest benefit of this is that it forces the parties to deal with ESI cooperatively because of the truncated timeline.

In terms of best practices, practitioners should strive to “be the reasonable one in the conversation.” Courts don’t look kindly upon unreasonable stances.

Additionally, educate yourself and use experts where appropriate: eDiscovery and electronic data require special knowledge – and there’s a benefit in working with eDiscovery consultants or vendors and in-house eDiscovery specialists before sitting down with opposing parties.

Judicial opinions: Know your eDiscovery standards

Q: What government and industry group specifications exist for discovery protocols? What about courts’ rules? 

A: There are three mistakes I encounter with some frequency:

  1. Not having any outliner agreement in place. Without at least a rough agreement, parties may wind up without any basis for complaint if things go awry. If a court has no real guidance or background in ESI, then you don’t know how it will fall. Even without specifics, some agreement is better than nothing.

  2. Legal teams coming to a negotiation on search terms before they even process the data. You can’t know what search terms will be effective without getting a general sense of your dataset first. So make sure to take the iterative approach outlined above.

  3. Many attorneys are hesitant about up-front costs when considering tools or processes that may reduce the initial data set at the outset of a matter. Up-front costs may appear prohibitive; however when compared with the ultimate cost of reviewing a larger data set, the cost-benefit calculation shifts. When analytics can remove thousands of documents from the data set for review, the deployment of sophisticated software can pay for itself and reduce the overall cost of a matter.

Outlining your production shouldn’t be a point of contention. It should be a meeting place where both sides get together to understand what they need.

 

Missed the first part of this series? Read it here.

About Geoffrey Geftman: Geoffrey brings more than a decade of legal and eDiscovery experience to his work as a discovery consultant. He consults with clients, attorneys, and technical support teams to develop custom workflows and leverage legal technologies in order to create cost-efficient practices and streamlined discovery efforts. Applying his industry experience from both the legal and technological perspectives, Geoffrey bridges the gaps to assist legal teams in developing strategies for responses to production requests and implementation of eDiscovery stipulations to minimize data and exposure for clients. Geoffrey regularly provides software training and legal education presentations to legal teams and litigation support specialists to keep them abreast of developing topics and trends in eDiscovery.

Getting your arms around your data is the first step in a solid eDiscovery plan.

About the author

Sarah Brown
Sarah Brown

Sarah Brown is a legal technology thought leader with more than a decade of experience in the eDiscovery and information management fields. At Legility, her primary focus is on driving awareness for the company’s innovative services and solutions. Prior to Legility, Brown spent eight years as head of marketing communications at Epiq, where she led global marketing communications and built thought leadership, PR, and analyst relations programs. Prior to Epiq, she led marketing communications at Exterro, an eDiscovery software company, where she founded and led their content-driven marketing organization. She has a journalism background and holds a master’s degree in strategic communications from Columbia University and a bachelor’s degree in journalism.

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