Effective Project Management in Discovery

This is a guest post by Ashish Prasad. Mr. Prasad has served as the Executive Editor of the Sedona Principles: Best Practices Recommendations and Principles for Addressing Electronic Document Production, and is the CEO of Discovery Services LLC. Read Mr. Prasad’s full bio at the end of this post.

I. Introduction

Discovery is among the biggest risks facing modern litigants. Effective management of discovery can have an equal, or in some circumstances, greater effect on the outcome of litigation than the actual merits of the case. No one gets to summary judgment, trial, or in most cases, a settlement without first going through the discovery minefield.

Going through the discovery minefield without a plan means taking an unnecessary risk that something will “explode” and derail your litigation efforts and strategy. Not only can discovery errors result in excessive costs, affect the outcome of the case or result in monetary sanctions levied against a client, but courts can impose monetary sanctions on counsel for discovery mismanagement as well. Effective project management is the key to avoid sanctions and other bad things that happen to lawyers and clients en route to case resolution.

This article first briefly explains counsel’s duty to manage discovery, then through several case examples, provides a description of the problems clients and counsel can encounter during discovery, and finally, provides a model for effective project management in discovery.

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A practical tip for keyword searching

Wm. A. Gross Constr. Assocs. v. American Mfrs. Mutual Ins. Co., 2009 WL 724954 (S.D.N.Y. March 19, 2009).

When the opening line of an ediscovery decision is: “This Opinion should serve as a wake-up call to the Bar in the District,” visions of another Qualcomn blowup immediately come to mind. When you realize the decision is about “the need for careful thought, quality control testing, and cooperation with opposing counsel in designing search terms or key words,” you guess this is another decision addressing the inadvertent waiver of privilege. Because ediscovery is easier to get wrong than it is to get it right, lawyers – being the cynical lot we are – immediately think the worst.

 Well, luckily for those involved in Gross Construction Associates, the decision’s opening salvo was a reflection of the judge’s frustration over having to design a keyword search when the parties could not agree on the terms to employ. While much of the decision retraces the same ground covered by the Victor Stanley and Equity Analytics decisions, the court does provide several interesting insights, and one practical tip to help prevent keyword searches from disintegrating into a game of Scrabble.

The decision arises out of a construction defects and delay claim involving the development of the Bronx County Hall of Justice. The Dormitory Authority of the State of New York (“DASNY”) was the “owner,” and employed Hill International as its construction manager on the project. Hill was not a party to the lawsuit.

DASNY agreed to produce Hill’s project-related documents and ESI to the other parties in the litigation. The issue confronting counsel, and the court, however, was how to segregate Hill’s project-related e-mails from those that were unrelated. Thus, the parties proposed to use the use of keyword searches to filter out the unrelated e-mails.

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Clawback and quick peek agreements are no longer considered the Gold Standard for protecting against the inadvertent waiver of privilege.

On a recent flight, I read the February/April, 2009 edition of Litigation Support Today magazine. Under the banner of Best Practices, was an article: “Slashing Ediscovery Costs in a Digital Universe.” One of the author’s recommendations was to negotiate a “quick peek” agreement with opposing counsel. However, care must always be exercised with quick peek and clawback agreements.

Fed. R. Evid. 502(e) confirms that a clawback or quick peek agreement only binds the parties to the agreement “unless it is incorporated into a court order.” Clawback and quick peek agreements provide no protection as to third parties. Thus, while you may avoid a claim of waiver as to information inadvertently produced to a party who signed such an agreement, other parties in that litigation who are adverse to you, and who were not signatories to your agreement, as well as parties in other cases, can claim that your quick peek agreement is not enforceable against them. They will argue that allowing your opponent to potentially view privileged documents without taking any precautions to ensure that privileged information was not reviewed by opposing counsel (other than simply entering into the quick peek agreement) waived attorney-client privilege and the work-production protection as to them. For further insight into the use of quick peek and clawback agreements, see Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D.Md. 2005).

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