The Importance of Electronic Discovery
Electronic discovery ("eDiscovery") is a complicated intersection between modern technology and the law that requires expertise beyond most lawyers and should not be under taken lightly. Parties have an obligation to act reasonably in proportion to a case's value and according to their situation. Certain cost-saving measure may be reasonable for parties of lesser means in small dollar cases, but those same measures may be considered unreasonable if undertaken by parties with substantial means in high-stakes litigation. Courts have grown impatient with larger organizations involved in significant matters that mishandle their own data, and they have demonstrated their growing impatience by levying hefty sanctions-including multimillion dollar fines-on clients and their lawyers in such situations.
If you are not completely comfortable handling any part of this process, you should enlist the assistance of someone with significant experience handling eDiscovery legal issues and project logistics. It is increasingly common for serial litigants (organizations that are routinely involved in litigation) to have someone internally that qualifies.
Acting reasonably may seem like an easy obligation to meet until you consider the complexity involved in the eDiscovery process. For example, if you have a million pages of documents to review and decide to save costs by hiring contract lawyers to do document review, what level of oversight is required to ensure their work is accurate? How do you perform quality control and quality assurance testing to monitor and measure reviewer accuracy? What level of reviewer accuracy is required? Without experience in this highly specialized activity, it is difficult to develop informed answers to questions like these.
Part of reasonable decision-making in the eDiscovery process involves the opposing party. Whether you are a plaintiff or a defendant, the Courts require that you work cooperatively with your opposition on discovery issues (you can fight about the legal issues later). Again, cooperating may seem like an easy obligation to meet until you consider the complexity involved in the eDiscovery process. Courts do not require that parties discuss and cooperate on every issue in discovery-after all, doing so would likely require divulging your litigation strategy. So what issue must you openly discuss with your opposition and what issues are acceptable to keep confidential? Without experience in this highly specialized area, it is difficult to develop informed answers to questions like these.
Christopher J. Spizzirri, eDiscovery Subject Matter Expert
Chris' practice is focused on electronic discovery and information governance issues, with the goals of making eDiscovery manageable, defensible, and cost-effective. Chris advises clients on the preservation, collection, processing, review, and production of electronically stored information ("ESI"), with an emphasis on highly targeted preservation and collections designed to tightly and defensibly control costs.
As a regular director of large-scale discovery projects, Chris' involvement in discovery starts as soon as litigation happens or is expected, and his eDiscovery law practice includes:
· Development of defensible preservation strategies soon after litigation is known or reasonably anticipated;
· Identification of individuals that are likely in possession of relevant data;
· Works closely with client IT departments to understand the client's network architecture and identify potentially relevant data locations;
· Represents clients to opposing counsel during the Meet & Confer process and in court at initial discovery conferences;
· Formulates strategic requests for ESI to ensure clients get the relevant information they are entitled to;
· Formulates strategic responses to requests for ESI to minimize the burdens of eDiscovery and protect confidential information;
· Identifies capable and cost-competitive 3rd party eDiscovery vendors when necessary;
· Normalizes the maddeningly disparate vendor cost structures so vendor proposals can be evaluated "apples-to-apples" instead of the usual "apples-to-oranges";
· Develops reliable project cost estimates multiple variables and parameters, so "reasonableness" can be evaluated using dollar estimates rather than vague concepts;
· Devises cost-effective collection strategies that minimize business disruption and data volumes;
· Develops, tests, and applies complex search methodologies and advanced culling techniques to minimize data volumes;
· Active management and oversight of large, remote teams of contract attorneys in the review of high volumes of often technically complex documents;
· Coordinates electronic document productions with 3rd party vendors;
· Fully documents every step in the eDiscovery process to maintain defensibility;
· Analyzes electronic document productions for errors and possible eDiscovery misconduct;
· Drafts motions to compel and motions for sanctions in cases of eDiscovery misconduct;
· Deposes custodians of records and eDiscovery vendors;
· Conducts client eDiscovery readiness analyses to identify potential eDiscovery obligations and risks in advance of litigation; and
· Develops document retention and technology usage policies (including social media) and strategies for their enforcement.
Chris has authored internal protocols outlining eDiscovery best practices and educates his colleagues to ensure eDiscovery expertise is spread firm wide. Chris chairs the firm's eDiscovery Committee and serves on the firm's Technology and Marketing Committees.
Activities and Affiliations
· The Sedona Conference® Working Group 1 on Electronic Document Retention and Production, Member
· Secretary and former Treasurer of the Herrmann Technology Inn of Court
· Delaware State Bar Association, Member
- Technology Committee, Vice Chair
- eDiscovery & Technology Law Section, Member
· Organization of Legal Professionals, Advisory Board Member
· International Legal Technology Association, Member
· American Bar Association, Member
- Science & Technology Committee, Member of the following Subcommittees:
-- E-Discovery and Digital Evidence
-- Artificial Intelligence and Robotics
-- Technical Standardization
-- Future of Evidence
-- Internet Relationships and Cloud Computing
-- Nanotechnology
-- Open Source Software
-- Telecommunications and Mass Media
-- Virtual Worlds and Multi-User Online Games
- Business Law Section, Technology Subcommittee, Member
· Board of Stewards of the Friends of Wilmington Parks, Member
· KINfolk Board of Directors, Member
· Delaware Branch of the Royal Society of St. George, Founding Member
Publications
12.14.2011
Implementing Savvy E-Discovery Practices (http://bit.ly/dW7SVM)
12.14.2011
Step-by-Step Lawyer's Guide to Defensible Discovery, including forms & checklists (internal)
12.14.2011
Author of the Delaware eDiscovery Report blog (www.delawareediscovery.com) 12.14.2011
eDiscovery for Law Firm Lawyers (internal training manual)