“You can’t always get what you want, but if you try ……you get what you need”

– The Rolling Stones

Who would have thought that when Mick Jagger sang those words back in 1969 on the “Let it Bleed” album that we could find a way to apply them to e-Discovery requests 40 years later?  Back then, records management meant finding ways to categorize 45’s and albums in a way that made sense in the mind of a 12 year old, be it by group, genre or top hits.  Just so you know, I still have every 45 and album from that early collection including the first 45 I bought – “Build Me Up Buttercup” by The Foundations.

Having attended over 150 e-discovery events since 1993, I am still somewhat surprised that one of the leading drivers of costs in discovery is rarely ever discussed in these forums.  The document request, be it in the form a subpoena or discovery request, is often the trigger that sets off a string of actions.  I would argue that most firms and corporations immediately go into a reactive mode once “the request” comes into the door or when there is a reasonable anticipation that litigation and ensuing requests will be arriving.  By going into reactive mode, the meter starts running and costs immediately incur before someone steps forward and says “Timeout, what are we doing this for?”

I completely understand the risks associated with preservation or lack thereof and that counsel is trying to protect their clients but shouldn’t same counsel also look at ways to place some burden back on the requestor before putting their clients through an exhaustive discovery cycle?  Interestingly enough the rules, specifically 26(g) offer support for taking such action. (See “You Can’t Always Get What You Want… But If You Focus On The Case And Follow The Rules, You Can Get What You Need”, BNA Digital Discovery & E-Evidence, March 2009) Why then do defense counsel not play this card?  Why is it that all the burden is immediately shifted to the client trying to respond to the request? 

I believe that the well regarded EDRM model misses a key step and enforces the habit of defense counsel going into reactive mode.  Where EDRM goes from Information Management to the Identification phase, I would like to offer a “Define” step where counsel seeks to define the scope of the request before the rest of the EDRM model steps are taken in order (Again, I am not arguing that preservation should be “put on hold” so to speak but some emphasis is placed on scope definition and redefinition).  The rules truly support such action and require reasonableness in the request of evidentiary materials.  I too often see clients take on the rest of the EDRM model under what they think opposing counsel is seeking.  The tendency is also to err on the cautious side and expand the scope which in turn increases cost.

On the other hand I have also seen clients who take a more aggressive approach when responding to discovery requests.  One corporation has developed a letter that is sent to opposing counsel restating what the requirements are for the requesting party specifically mentioning the reasonableness of said request.  Other companies have included wording in their outside counsel guidelines requiring defense counsel to aggressively negotiate scope be it search terms or a set number of custodians.  Some companies make use of their knowledge base from defending a certain portfolio of litigation to help define what should or should not be defined in the scope moving forward.

I would like to conclude this entry with a challenge - Defense counsel, move from reactive mode to responsive mode and truly serve the needs of your clients.  The rules can support you.  Use the tool of inquiry to place some burden on the requesting party to demonstrate reasonableness.  The steps you take in defining scope may very well save your client the greatest amount of time and money in discovery management.

About Jim Michalowicz

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