You understand the basic e-discovery workflow and are familiar with available technologies. Your next big challenge: getting your client on board. (If you’re a corporate attorney who’s reading this, you, as the client, will need to know this as well.)
Attorney buy-in is essential, but it is of little value when the client refuses to cooperate in the development and implementation of defensible e-discovery practices. This is a common pain point for many attorneys, and particularly for those who practice in regions in which the bar and the bench have been slow to embrace e-discovery as an important component of almost all litigation.
Fortunately, there are some strategies you can implement to win over any clients who are reluctant to recognize the unique demands of e-discovery.
Step #1: Get e-discovery on the client's radar early
One thing many clients fear more than e-discovery? Surprises.
As tempting as it may be to avoid a difficult conversation, addressing the topic early and directly often is the best approach. As soon as counsel anticipate that electronically stored information (ESI) is likely to be relevant to the case, they should:
- Inform the client that the parties will need to engage in e-discovery.
- Outline in general terms any authorities that govern the e-discovery process (such as the Federal Rules of Civil Procedure, local rules, judge's rules, or controlling case law).
Forecasting what the client should expect – complete with cost estimates as early as is reasonably possible – allows the client to properly budget for the litigation and develop a strategy that is based on a realistic view of litigation expenses.
Step #2: Educate the client about the benefits of e-discovery
When educating a client about e-discovery, counsel often focus on risk abatement and note the risks of:
- Being sanctioned for not properly preserving or producing ESI.
- Having to re-collect or re-produce ESI if a court deems the original production inadequate.
These points have merit and should not be overlooked. However, counsel should look beyond the "you might regret it later" line of reasoning and highlight the ways in which the client may benefit from a reasoned e-discovery approach.
For example, if a client invests in a thoughtful ESI preservation, collection, and processing workflow; the client (and counsel) can use the ESI's metadata and other e-discovery tools (such as clustering) to quickly find critical documents and information. In other words, prudent e-discovery practices aren't just a favor to the opposing party or a necessary evil to avoid hefty sanctions – they also render the ESI more useful to the client and counsel, and arm counsel with the information necessary to be an effective, well-informed advocate.
Step #3: Involve the client in planning
Early discussion and education are important, but counsel should continue to involve the client as e-discovery progresses. This ongoing communication enables counsel to demonstrate that they are vetting various processes and vendors to find the best fit for the client and the case, in terms of both cost and scope of work.
In addition to cost, counsel should keep in mind that organizational clients generally have a business to run aside from participating in litigation. Counsel can demonstrate this awareness by identifying e-discovery strategies that minimize the imposition on the client's business. For example, counsel may recommend that an e-discovery vendor perform a single, broad ESI collection from a critical custodian, rather than recommending a small, targeted collection that leaves open the possibility that the custodian will be interrupted again in the future when additional ESI is needed.
Step #4: Keep the client informed
No amount of careful planning can ensure a seamless e-discovery process, and counsel should inform the client when unexpected obstacles arise. As with all twists and turns in litigation, e-discovery surprises should be presented timely and, when possible, accompanied by suggestions for how the client can most effectively respond to the challenge.
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Managing clients is tricky, and proposing an e-discovery workflow that clients may instinctively perceive as costly and unnecessary doesn't make it any easier. However, counsel's legal and ethical obligations do not vary based on the client's enthusiasm for e-discovery. Accordingly, counsel must be proactive, direct, and diligent to ensure that they represent the client in a defensible manner and leverage the efficiencies and advantages that e-discovery offers.