Happy New Year!

While most years I am content to write New Year’s resolutions for myself, this year I have decided to write New Year’s resolutions for various constituents in the e-discovery community.  Here are my top three New Year’s hopes for clients, vendors, counsel, and the courts.

Clients

• In 2010, you will draft and implement a comprehensive, written, records and information management policy as to which you will provide training and monitor compliance.
• In 2010, you will establish a multidisciplinary E-Discovery Response Team that will work with outside counsel to identify, preserve, collect, and produce relevant ESI when litigation is reasonably anticipated or pending.
• In 2010, you will come to understand that cost should not be the determining factor in making vendor selections, and that “budget” service providers can end up costing you more in the long run.

Service Providers

• In 2010, you will establish pricing models that are transparent and allow for apples-to-apples comparison between competing bids for the same matter.
• In 2010, you will be true to your word and will not over-promise.  “I will have the data ready for review on Monday morning,” does not mean that you will first have it available on Thursday night.
• In 2010, your sales force will be able to explain how your search and review tools and processes work.  Because you stand behind your tools and processes, you will be willing to participate in the Legal Track of the National Institute of Standards and Technology’s Text REtrieval Conference (TREC), which seeks to benchmark search methodologies and to advance knowledge in information retrieval in the e-discovery context.

Counsel

• In 2010, you will endeavor to become more competent and knowledgeable about e-discovery and will come to meet-and-confers more prepared to have a meaningful dialogue.
• In 2010, you will embrace the concepts of reasonableness and proportionality.  You will not seek everything under the sun and a pony, nor will you interpose boilerplate objections to reasonable document requests.
• In 2010, you will endeavor to be more cooperative when it comes to e-discovery, particularly in areas that impose costs that are disproportionate to the value they create, such as individual privilege logging of every email in an e-mail thread.

The Courts

• In 2010, you will insist on proportionality under Federal Rule of Civil Procedure 26(b)(2)(C), or its state-law equivalent.
• In 2010, you will be willing to intervene and, where necessary and appropriate, sanction parties that unreasonable and intentionally seek to stonewall and burden their opponents by sharp e-discovery practices.
• In 2010, you will endeavor to develop a greater understanding of the challenges posed by the privacy concerns implicated by cross-border e-discovery.

The views expressed above are solely those of the author and should not be attributed to her firm or its clients.

About Maura R. Grossman

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