E-Discovery: Waging a strong e-discovery offense

http://ow.ly/7BE46

An article on the insidecounsel.com website written by Matthew Prewitt.

This article discusses the role of an eDiscovery consultant, and specifically addresses tactics related to an "offensive" strategy, as opposed to a responsive role.

The article states, "First, waging an aggressive e-discovery offense requires having confidence that your company’s own e-discovery is defensible."

The article wisely advises, "Because of the frequent high-stakes battles over e-discovery sanctions, too many attorneys equate an aggressive e-discovery strategy with posturing the case for a potentially dispositive sanctions motion. In most cases, however, your company’s primary e-discovery objective should be the tried and true strategy of obtaining evidence in your adversary’s possession that will help win your case. Counsel who are angling for an e-discovery sanctions battle may miss valuable opportunities to win the case the old-fashioned way: proving the merits of the client’s claims and defenses."

The author further mentions, "By maintaining a friendly and constructive demeanor, your trial counsel and retained consultant may readily induce opposing counsel to rely on their technical advice and insights when negotiating the parameters of your adversary’s preservation, search and production protocols."

The article also addresses situations to be wary of, and discusses scenarios where the opposing side might be looking to gain advantages by not properly handling their eDiscovery obligations.  The article states, "In short, I share the view expressed by many that there are too many sanctions motions arising from e-discovery and the awarding of significant and potentially dispositive sanctions for e-discovery violations is encouraging unnecessary and distracting motion practice. In most cases, going on the e-discovery offensive should mean only that your counsel and consultant are asking hard questions in discovery conferences with your company’s adversary and demanding a reasonably complete production.

However, there are still some cases where it is essential to seek relief from the court."