Harness the Power of EDD Planning

Most lawyers have firsthand experience of the technological advances that have resulted in an increase in the volume of electronically stored information. Because digital storage is becoming less expensive each year, traditional limitations of record retention -- such as employee time required to file and archive records and physical limitations on storage space -- simply do not apply. It is easier to save data than to cull it.

For these reasons, as well as the general complexity of ESI, it is crucial that lawyers devote sufficient time and attention to the discovery-planning conference between parties as required by Federal Rule of Civil Procedure 26(f). The discovery-planning conference must be completed prior to the Rule 16(b) scheduling conference with the court, where the judge generally will enter the discovery order.

Discovery, while always time- and cost-intensive, can dominate litigation because of the enormous volume of potentially relevant information that lawyers consider, review and produce. Increasingly, document productions are measured in terabytes of data -- for those who prefer to think in pages, in the millions of pages. The cost of processing, screening and reviewing this information can easily run into the millions of dollars. Such a large expense early in the case dramatically can affect the parties' perception of the case and will drive settlement decisions even without meaningful consideration of the merits of a case.

In this landscape, lawyers must give the discovery-planning conference a central, strategic role in formulating a case plan. Rule 26(f) was amended in 2006 specifically to "direct the parties to discuss discovery of electronically stored information during their discovery-planning conference."

While the particular ESI issues lawyers should address depend on the specifics of a case, the advisory committee that wrote explanatory notes to the 2006 amendment introduced some of the many issues meriting consideration early in a case. Recent court decisions make clear that lawyers must use the discovery-planning conference to set the stage for cost-shifting, to establish a record of information that is not reasonably accessible, and to ensure that the client does not have to pay to produce information unnecessary to a particular case, such as a full suite of metadata.

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Source: Law.com
By: Jeffrey A. Andrews