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eDiscovery as a Sword

We have all seen the cartoon where one character removes the “Beware, Quicksand” sign and another character literally steps in it.  Cue the panicked looks, the ominous music and the vain efforts to struggle to get free.  And at the end, the quicksand-trapped character usually provides the audience one last longing look before getting pulled below the surface.

In the landscape of litigation, the new sign should read, “Beware, Electronic Discovery!”  While Electronic Discovery is often looked at at the red-headed step child of litigation, it can and does become a quicksand situation where the uninitiated (and often ill-prepared) attorney can get pulled below the surface unable to regain his/her footing on solid ground. Electronic discovery requires more than a cursory understanding of how it works.   It is more than just something to “get through it” to satisfy their legal and ethical requirements.  Electronic Discovery can be the weapon to put your adversary back on their heels, forcing them into a persistent defensive posture.  You can use electronic discovery to create a case-long diversion which forces your adversary to expend their energies on the technical end of discovery.  Literally forcing them to focus on the logistics of discovery rather than its substance.

Our job as litigators is to take the discovery and use it to develop case theories and defenses.  If you weaponize electronic discovery, it can shrink the time with which your adversary has to use the discovery provided giving you and your client the advantage.

Step one, know what you know and what you don’t. Make sure that you utilize ECA protocols to understand what your client has (in terms of discovery) and where it is located. Luck favors the prepared so make sure you know where everything is and how you are going to collect it. On the flip side, know what your adversary may have and where it could be located.  In Federal Court this is usually accomplished at the Rule 26 conference but in state court, don’t be afraid to ask the (right) questions in interrogatories and document requests so that you understand the case’s electronic landscape.  Also, be ready to draft supplemental discovery requests once you have the initial terrain mapped.  

Step two, make sure you are in control of what is being exchanged.  Identify the production format and understand the platform through which the documents will be produced. Know the difference between a load file, extracted or OCR text and native documents.  And if you don’t know, by all means ask somebody.

Step three, stay aware of your adversary.  Once you have an understanding of what you are asking for and how it should look, make sure you are getting it.  Staying on top of your adversary in these situations takes very little effort on your part but can and will put your adversary on their heels having to defend their production or taking the time to figure out what went wrong in the first place.

Being the attorney with the most knowledge regarding electronic discovery can give you and your client the edge.  The Court will inevitably look to you as the repository of all discovery knowledge and, in turn will give you the advantage over your adversary.  

Weaponizing electronic discovery can be strategically effective and position you as the expert in the courtroom. Either way, never go into battle unprepared.  Don’t be the attorney on the receiving end of the electronic discovery nightmare.  Aside from general appearances, and a strategic advantages, failing to know and understand how your client’s electronic discovery is stored, preserved, and ultimately produced can result in negative inferences and/or sanctions from the Court. Remember, you are also under ethical obligations to have such knowledge.  

So, “Beware, Electronic Discovery” and always be on the lookout!

Nothing contained in this blog should be construed as creating an attorney-client relationship or providing legal advice of any kind.  If you have a legal issue regarding cybersecurity, domestic or international data privacy, or electronic discovery, you should consult a licensed attorney in your jurisdiction.