OTLA Trial Lawyer Winter 2021

29 Trial Lawyer • Winter 2021 As the experience proved fruitful for the attorney above in that first case and others, he is investing in refining e-dis- covery practices that save his team time and money, ensuring consistency going forward. He now has more sophisticated production request language that de- mands that the format delivered by op- position meet the common standards as outlined in both the FRCP and ORCP. This puts the larger opposing counsel firm on notice that he is on a similar footing with his e-discovery capability. As added benefits, he can be more in- formed and creative when negotiating scope and proportionality early in the case. With access to a cloud-based e- discovery platform for review and case prep, he can easily collaborate with co- counsel, as is often the case with his solo practice. This attorney’s path from first case to full adoption of e-discovery provides a few key lessons for others who want to take a similar journey: • Start small, but with a commitment to embrace it long-term. Select a case with a small volume of electronic discovery, and begin early to experi- ence the full cycle of activities from custodian interviews and production requests through data collection, review and production. Ideally, a prac t i t ioner should v i ew thi s paradigm shift in the practice with an eye toward developing a new program that has repeatable processes, proper and reusable documentation, and a play book that outlines the steps throughout the e-discovery cycle. • Seek out e-discovery expertise, at least to start. It is extremely helpful to have a guide at first, but different attorneys will have different long-term goals. Some may want assistance in building out a program for their practice and current staff that they will manage completely, while others may want to build a relationship with an e-discov- ery consultant or vendor who will provide ongoing e-discovery services and essentially act as a part of their extended team. Others still, may want to pursue a hybrid of these two paths, handling the smaller cases internally while engaging their outside “team” for larger, more complex cases. • Seek out an e-discovery platform that is user-friendly and intuitive. A prac- titioner may have to test a few, but they are out there. Expect to learn the basics quickly and then broaden user command of the advanced tools with increased time in the platform. • A practitioner should be educated on e-discovery pricing to avoid any sur- prises. Some e-discovery platforms and services are pay-as-you go, with no commitment or contracts. Others require recurring minimums and a longer-term commitment that may make sense with some matters but not with others. In any case, while e-dis- covery pricing can vary somewhat between providers, each vendor should be able to provide detailed transparency on all services and a framework for estimating total spend on a matter. • Communicating proactively with clients about the costs the firm in- tends to pass through is essential. An e-discovery vendor can and should provide detailed descriptions of activities and clarification where necessary of the need for these activi- ties within the e-discovery workflows. The more a practitioner invests in e- discovery tools and practices, the more the firm will develop concrete examples to provide clients that il- lustrate the additional time saved in review, productions or other case work, or the additional value gained by having the ability to search and organize key documents so quickly. The production request received by that first trial lawyer requesting docu- ments from so many different data sources is not an outlier. Unsurprisingly, that type of request comes with increas- ing frequency. Potentially discoverable communications are increasingly dis- persed across a growing number of plat- forms. Twitter, Instagram, Signal, and WhatsApp seemed new only a few years ago. TikTok was one of the most-down- loaded apps in the U.S. in 2019, even if its legal status in the U.S. might be in question. New apps are appearing all the time and existing apps with millions of U.S. users such as Facebook or Twitter have bolstered their direct messaging compo- n e n t s , wh i l e i n c r e a s i n g t h e i r presence in both personal and business contexts. This is even more common now, as the pandemic has forced most people to work at home, further entwin- ing the devices used for both work and personal lives. This reality makes the defensible collection and management of electronic evidence that much more overwhelming and ineffective without a modern e-discovery toolkit and ap- proach. If you start small and invest in the process, you should find it economically feasible and a boon for your practice. Trevor Clark is Founder and CEO of Cloudscape eDiscovery, which provides e- discovery services and litigation support for active litigation and investigations, special- izing in small firm program development and support. Cloudscape eDiscovery is at 5520 SW Macadam Ave., Ste. 210, Port- land, OR 97239. Clark can be reached at [email protected] or 503- 908-4111.