The Five Hottest Topics in E-Discovery Today

Last week I listened to an episode of Digital Detectives, a great series of podcasts co-hosted by Sharon Nelson and John Simek of Sensei Enterprises, Inc., who spoke at length with attorney and e-Discovery expert Josh Gilliland, author of the noted Bow Tie Law blog.

The topic was straightforward:

What are the five hottest topics in e-Discovery today?

1. Form of Production

Federal Rule of Civil Procedure 26(f) mandates that parties “meet and confer” in a meaningful manner. Meeting and conferring is extraordinarily important in cases involving e-Discovery and should never be a one-time event, according to Gilliland. One of the central points of procedural discussion with respect to electronically stored information is the form in which ESI is to be produced. Gilliland warns against requesting all metadata lest an attorney be faced with documents with unlimited fields. Cooperation, open communication, and transparency should take the place of gamesmanship, which also means agreeing up front that the parties won’t engage in sanctionable behavior such as producing unsearchable, unusable documents, e.g., static images or others stripped of metadata. Where native file production is expected, the parties should discuss the cost of producing and reviewing any given volume of relevant documents.

2. How Can Small Firms Survive Their Entry Into E-Discovery?

It can be difficult for solo practitioners or mid-sized firms to get up to speed with e-Discovery, which is especially problematic when doing so isn’t part of the implementation of processes generally, but rather is a matter of necessity when a case arises. In this regard, Gilliland expresses dismay at a common response from lawyers who practice only in state courts: “I don’t need to worry about it.” Nonsense. I recently heard the same comment during an interview with an attorney who works in a small market, but the nature of whose growing practice will no doubt see him in federal court. Gilliand adds that there is generally a lack of affordable tools for smaller firms, but said that there is now a growing set of desktop document review solutions. Moreover, cloud-based software-as-a-service (SaaS) solutions make review affordable for solo practitioners, as one can scale up or down quickly and on demand.

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Source: blogs.forbes.com
By: Ben Kerschberg