Trial Magazine

During discovery, each new day brings with it another opportunity for progress or delay. It often can feel like trench warfare, with inches gained or lost in the daily meet and confer battles. However, the way the discovery process is structured can greatly influence the effectiveness and pace of discovery over the course of litigation.

Broadly, the discovery process has two structural components: interactions between parties and interactions with the court (or magistrate or special master). Some of these interactions may be addressed by default in the local rules or individual practices of the court. But there are frequently opportunities to optimize the structure of the discovery process from the outset.

Take care when drafting and negotiating documents such as a case management order, ESI protocol, or special master procedures. The decisions made at this stage will determine the likelihood of later disputes being resolved without court intervention—as well as the speed at which the court can resolve disputes if necessary. So it is worth spending a little extra time at the start to ensure those procedures and provisions serve you well in the future.

Interactions Between Parties

The simplest and often most effective way to control the pace of discovery is to set clear deadlines for completion of certain milestones in the governing case schedule. Setting specific deadlines for your ESI protocol, protective order, and the exchange of search term/custodian proposals and counterproposals delineates clear expectations and keeps parties focused.

Identify the low-hanging fruit that can be produced with minimal burden yet will have an outsize impact on shaping the progress and efficiency of discovery negotiations. For example, exchanging organizational charts, working group lists, and certain policies and procedures manuals can greatly aid in the negotiation of custodians and inform ESI issues. These are usually located in a central repository so they can be produced before discovery negotiations have been completed.

Courts increasingly require the exchange of such documents and information early on to aid in discovery negotiations. For example, one court held that a defendant “must disclose data sources that may contain relevant ESI so the parties, together, can come up with an intelligent and workable ESI protocol,” adding that it “disagrees with [the] Defendant that all it needs to do is identify its work email as a relevant data source.”¹ The “key,” the court said, “is cooperation in identifying relevant data sources, custodians whose data should be searched, and appropriate search terms and how those terms are to be applied to the ESI in question” and “that means [the] Defendant must provide [the] Plaintiff with information necessary for her to calibrate her discovery requests.”²

In initial discovery negotiations, think about sources of discovery that may be high value and low burden, such as productions made in related actions or to government investigators when a relevant document set was previously culled and reviewed for privilege. Be mindful of the protective order in the other case. However, it generally won’t constrain parties from reproducing their own documents—likely the ones you are most interested in anyway. Then use these prior productions to help structure your discovery process in the most efficient way possible.

Do not reinvent the wheel every time you draft an ESI protocol. Consult your internal and external ESI experts and develop a template that contains your preferred terms. It’s likely that 80% or more of these terms will apply from one case to the next.

Consult your internal and external ESI experts and develop a template that contains your preferred terms. It’s likely that 80% or more of these terms will apply from one case to the next.

But think carefully about how terms may need to be adapted to fit the types of documents, communications, or other evidence at issue in the case at hand. For example, if the case involves a large volume of paper files, ensure you have a process in place to obtain documents in an organized fashioned—and a process for court involvement if it is not followed. Or if social media will be a key part of your case, ensure that the username and platform are included with the metadata in these productions.

There is often no default requirement when it comes to production of metadata, so don’t assume that the court will later compel its production when it was not agreed to in advance.³ Remember, the purpose of an ESI order is to put in place the guardrails and procedures for the exchange of documents. If something you want (or are going to need) is not in the ESI order, then you are not going to be able to get it—the court will only help you with issues that are grounded in the ESI order.

Otherwise, the default is Federal Rule of Civil Procedure 34(b)(2)(E)(ii), which states that when a form for ESI production is not specified, a producing party “must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”

Interactions With the Court

Effective and efficient procedures for bringing disputes to the court (or magistrate or special master) are essential for resolving disputes and for creating incentives for the parties to resolve issues themselves. Circumstances may dictate the extent to which you can influence who decides disputes and how they are resolved. Courts are increasingly looking to special masters to oversee discovery both to alleviate strain on judicial resources and for their technical expertise.

You may have some influence over whether a special master is appointed and must ask yourself whether the appointment will likely speed up or slow down progress. A special master typically has more time to devote to your case than the court and may be able to decide issues faster. However, if all special master decisions are subject to additional review by the magistrate or court, this may simply add a painful extra layer of review following a report and recommendation, with one or more rounds of nearly identical briefing.

Successive rounds of largely identical briefing can slow down dispute resolution and be used as a delay tactic, so procedures should be as streamlined as possible. Consider having parties submit position statements or letter briefs on each issue only once, without a reply. Nearly all discovery disputes follow a mandatory meet and confer in which the parties exchange their positions (at a minimum telephonically but also often via written correspondence). There’s no reason why the parties cannot put forward their own positions and respond to the other sides’ positions at the same time before the discovery master.

Well-considered procedures should also clearly define what types of issues may be decided by the special master or magistrate. Ideally, their decisions should become effective when made, absent reversal by the court, so that objections do not automatically halt the progress of discovery.

At the end of the day, your ability to keep opposing counsel in line depends largely on how willing your judge is to hold their feet to the fire when you raise discovery disputes. Possibly the most important strategic question in discovery is deciding which disputes to raise with the court.

Building a record of delay and abuse by consistently bringing disputes before your judge can make the judge as exasperated with your counterpart as you are and lead to significant consequences for the other party. Courts have, for example, recommended entry of default judgment against defendants after repeated discovery abuses, including spoliation, failure to supervise client searches, and false statements to the court.⁴

However, overburdened courts are easily fatigued by parties’ consistent failure to resolve disputes themselves and may admonish those who are too quick to run to the court for intervention. Courts have implored parties “to lessen the burden of various ESI searches by fine tuning search requests . . . or by phasing their queries of particular data bases so they can learn more about the efficacy of certain searches before running others.”⁵

Parties should “continue to talk about these issues and not . . . take absolute line-in-the-sand positions without a solid basis for doing so.”⁶ Finding the right balance will be different in every case and will depend on the judge, the opposing counsel, and the circumstances. But finding balance will advance the ultimate goal of obtaining the discovery necessary for your client’s case.

Best Practices

Now that you’ve set up a streamlined discovery process, everything should be smooth sailing, right? Unfortunately, there is no such thing as autopilot in discovery. A well-designed process, however, will provide you with more options to deal with obstructionist behavior down the line.

Here are some best practices to keep in mind during the meet and confer process to stay on course:⁷

• Keep meticulous notes of what agreements have been made and what outstanding balls are in each party’s court.
• Set clear deadlines for responding and exchanging information.
• Consider exchanging information or questions in advance of calls via email with the expectation that the parties come prepared to use call time to negotiate.
• Leverage technology whenever possible. Meet and confers increasingly take place via video conference, so you can use screen-sharing to review documents together. This helps you avoid time lost to “I will have to look at the language and get back to you.”

Even as court backlogs grow ever longer, we are not powerless to impact the speed at which our clients’ cases move. The pace and tone of discovery are often set early through the schedule, the procedures established, and the daily practices that together determine how efficiently progress can be made.

Corban Rhodes and Mark Abramowitz are partners at DiCello Levitt in the firm’s New York and Cleveland offices, respectively. They can be reached at crhodes@dicellolevitt.com and mabramowitz@dicellolevitt.com.

Notes

1. See, e.g., Cary v. Ne. Ill. Reg’l Commuter R.R. Corp., 2021 WL 678872, at *4 (N.D. Ill. Feb. 22, 2021).
2. Id.
3. See, e.g., Cody v. City of St. Louis, 2021 WL 2454215 (E.D. Mo. June 16, 2021) (denying motion to compel re-production of documents together with additional metadata, when the particular metadata sought had not been spelled out in either an agreed-to ESI protocol or the movant’s document request instructions).
4. See, e.g., State Farm Mut. Auto. Ins. Co. v. Max Rehab Physical Therapy, LLC, 2021 WL 2843832 (E.D. Mich. June 28, 2021), aff’d 2021 WL 3930133 (E.D. Mich. Sept. 2, 2021).
5. See, e.g., Cary, 2021 WL 678872, at *1.
6. Id.
7. For more tips, see Beth Graham & Adam Gomez, Make the Most of Meet & Confer, Trial, Oct. 2021, at 16.