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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
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