E-Discovery In Smaller Stakes E-Discovery In Smaller Stakes CasesCases

Hon. Joseph R. Slights, IIIHon. Joseph R. Slights, IIISuperior Court of DelawareSuperior Court of Delaware

The Case Management OrderThe Case Management Order

The Court’s First Contact With CounselThe Court’s First Contact With Counsel

– After last responsive pleading is filedAfter last responsive pleading is filed

– Letter to counsel setting the case management Letter to counsel setting the case management conferenceconference

– Sets forth a “to do” list prior to the conferenceSets forth a “to do” list prior to the conference

The “To Do” ListThe “To Do” List

Meet and conferMeet and confer

– Same side of the vSame side of the v

Is a coordinator necessary?Is a coordinator necessary?

How best to coordinate/communicate among the parties and How best to coordinate/communicate among the parties and with the Courtwith the Court

Strategies for more efficient discoveryStrategies for more efficient discovery

Joint defense?Joint defense?

The “To Do” ListThe “To Do” List Meet and ConferMeet and Confer

– With the other side of the vWith the other side of the v

Early ADR, motion practice, discovery sequencing, amendments to pleadings, Early ADR, motion practice, discovery sequencing, amendments to pleadings, additional parties, further court conferences (status), pretrial conference, trial additional parties, further court conferences (status), pretrial conference, trial datedate

E-discoveryE-discovery

– Scope (this is critical and requires much advance thought and planning)Scope (this is critical and requires much advance thought and planning)

– PreservationPreservation

– IT issues (exchange system info)IT issues (exchange system info)

– Format (with emphasis on cost containment)Format (with emphasis on cost containment)

– Protective Orders and Claw Back OrdersProtective Orders and Claw Back Orders

The “To Do” ListThe “To Do” List

E-discovery (cont’d)E-discovery (cont’d)

– Outside vendor vs. in house ITOutside vendor vs. in house IT

– Sequencing E-discovery with Agreed Upon LimitsSequencing E-discovery with Agreed Upon Limits

The ConferenceThe Conference

Come With Agreements (Judges LOVE This)Come With Agreements (Judges LOVE This)

Be Prepared to Make Your Pitch On E-DiscoveryBe Prepared to Make Your Pitch On E-Discovery

– Nature of Case and how e-discovery fits in Nature of Case and how e-discovery fits in

– Limitations of clients (costs and staffing, business interruption)Limitations of clients (costs and staffing, business interruption)

– What Do You Really Need?What Do You Really Need?

– Is the Court’s Default Standard AcceptableIs the Court’s Default Standard Acceptable

Suggestions to modifySuggestions to modify

The KeyThe Key Don’t Allow The Litigation (i.e. E-discovery) To Consume The ControversyDon’t Allow The Litigation (i.e. E-discovery) To Consume The Controversy

EDUCATE THE COURT – be VERY specific regarding issues in controversy, systems, EDUCATE THE COURT – be VERY specific regarding issues in controversy, systems, cost, burden cost, burden

– much more useful than citations to case authoritymuch more useful than citations to case authority

Emphasize proportionality – American College of Trial Lawyers findingsEmphasize proportionality – American College of Trial Lawyers findings

Know your State Court’s Rules – e.g. is there a distinction between “reasonably Know your State Court’s Rules – e.g. is there a distinction between “reasonably accessible” and “not reasonably accessible” as in Fed. R. Civ. P. 26(b)(2)(B)?accessible” and “not reasonably accessible” as in Fed. R. Civ. P. 26(b)(2)(B)?

Other Ways To Get The Same Information?Other Ways To Get The Same Information?

Rolling Production and SamplingRolling Production and Sampling

Capture Data vs. Removal of Hard DrivesCapture Data vs. Removal of Hard Drives

The Case Management OrderThe Case Management Order Do Not Leave The Case Management Conference Without Asking For:Do Not Leave The Case Management Conference Without Asking For:

Clawback OrderClawback Order– Outlining process for claiming inadvertent production of privileged materialOutlining process for claiming inadvertent production of privileged material– And process for getting it backAnd process for getting it back– Sample in materialsSample in materials

E-discovery, includingE-discovery, including– Preservation of ESIPreservation of ESI– Scope of production (custodians, search terms, time period, file types)Scope of production (custodians, search terms, time period, file types)– Scope of discoveryScope of discovery– Assertion of privilege and confidentialityAssertion of privilege and confidentiality– Allocation of costsAllocation of costs– Reach agreement or subject to Court’s default standardReach agreement or subject to Court’s default standard