Ethics
Remediation Center
Q&A
Sharing e-Discovery Expense With Opposing Counsel
A t the request of subscribers, Compli-
ance Week offers a Remediation Cen-
ter, in which readers can submit questions
have supported (and even mandated) efforts
to reduce and allocate costs through col-
laboration. Magistrates have ordered par-
sarial mode and work more collaborative-
ly during the discovery phase of litigation.
Some techniques the conference suggests
anonymously to securities and accounting ties to agree to cost-sharing strategies at the include:
experts. Compliance Week’s editors will outset of litigation, or even to develop and
review all questions and then submit them submit for court approval an early joint dis- » Exchanging information regarding
to specialists who can address the issues in covery plan with a budget proportional to relevant data sources with the oppos-
detail. the amount at issue in the litigation. ing party or scheduling early disclo-
sures on the nature and location of
QUESTION electronically stored information;
I’m in the legal department at a smaller
public company. We have a fair amount » Jointly crafting search terms and
of corporate litigation, and like lots of Even if you don’t ultimately search methodologies to identify re-
other folks, we’re going crazy with elec- agree to share costs outright, sponsive materials effectively;
tronic discovery costs. I know the 2006
Federal Rules of Civil Procedure encour- approaching opposing » Developing case-long discovery bud-
age a “meet and confer” approach to e- counsel early to develop gets proportional to the amount in
discovery, but I’m wondering if anyone controversy in the litigation; and
has considered outright sharing the cost
a collaborative approach
(and burden, and benefits) of e-discovery to e-discovery can provide » Agreeing to use special masters or
with opposing counsel. Am I nuts to con- other formal mechanisms to referee
template this? Any advice on how to ap-
substantial cost savings. and resolve discovery disputes short
proach it? of involving the court.
ANSWER Even if you don’t ultimately agree to In these tough economic times, which
Susan Salmon: Not only are you not nuts; share costs outright, approaching oppos- have led companies large and small to
you’re in excellent company. In this eco- ing counsel early to develop a collabora- cut their legal departments and litigation
nomic climate, many of us are looking f