Sharing e-Discovery Expense With Opposing Counsel

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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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