Poor communication and a lack of cooperation between litigants in e-Discovery matters can contribute significantly to increased litigation costs. The matter should be resolved on its merits and not derailed or made costlier by unnecessary e-Discovery disputes.
Additional costs in e-Discovery often occur due to litigants over-collecting and over-reviewing data rather than communicating with the opposing party and providing enough transparency on what data their client has, in order to secure a concession on scope or methodology for disclosure from an opponent.
Judges are becoming more and more serious about how practitioners conduct the meet-and-confer process. Litigants need to be transparent with each other regarding the who, what and where of their client’s ESI, in order to allow the opposing party to request only the necessary information from your client and not have to issue ‘any-and-all’ requests which place a higher and costlier burden on your client when disclosing.
Tips
1. Be prepared for the ‘meet and confer’ meeting, with the aim to cooperate with the opposing party.
2. Develop the scope and methodology for discovery with the opposing party in a transparent manner.
3. By communicating and cooperating, you demonstrate transparency to the opposing party and they will be less likely to challenge your disclosure efforts.
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