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Early Avoidance of Potential Discovery Pitfalls Can Streamline Litigation

by Richard Guerra on Categories: electronic discovery

Early Avoidance of Potential Discovery Pitfalls Can Streamline Litigation
Errors and insufficient planning committed during the course of discovery can often have the unfortunate consequence of negatively impacting the merits of a case. Many of these discovery pitfalls, however, can be avoided by establishing a clear and early discovery protocol with your client and with opposing counsel. The following tips and examples may assist in the development of such a protocol. 

Record Preservation 

Preserving electronically stored information (ESI) and hard copy documents lies at the core of modern-day discovery. The duty to preserve arises as soon as there is reasonable anticipation of litigation, which can be long before a lawsuit is filed. When litigation is on the horizon, making sure your client puts a stop to any routine destruction of potentially relevant information, like purging back up data, is priority.
Customarily, a preservation letter is sent, notifying the client of what kind of information must be preserved, as well as of their obligation to keep that information out of the trash bin.
A preservation instruction should inform the client of potential destruction and preservation issues. For example, clients typically have document retention policies for their internal records that may need to be suspended. With respect to email communications, the client may have Outlook software that routinely purges messages from the “deleted mail” folder. Any such purging must be disabled. 

In sum, understanding how your client maintains files and implementing a comprehensive preservation protocol is crucial.

ESI Protocol

Negotiating how ESI is going to be exchanged prior to disclosure is critical in view of the realities of present-day document maintenance and transmission. At your earliest opportunity, find out if your client as well as the opposing counsel uses document management software, and if so, any data fields that are used to search and navigate documents stored therein (e.g., date, author, recipient, etc.). In addition, you should also discuss whether the parties will be entitled to “native” formats of any documents exchanged during the course of discovery, and if so, a protocol for obtaining documents in their native form from the opposing side. You should also discuss whether the parties will be entitled to any “meta-data” that may be associated with an electronic communication or electronically-created document. Because meta-data often includes information like the document’s author, the date and time the document was created, and the last time it was modified, the client must be informed that this information will be discoverable. 

Identifying document management software and related data fields at an early stage in litigation will assist with a smoother exchange of documents and ESI when discovery begins to ramp up. 

Early Disclosure

Initial disclosures under Fed. R. Civ. P. 26 (or a state counterpart) should not be treated as a perfunctory exercise. Use these early discovery obligations as an opportunity to assess of your case–and your budget–in more detail: What is the universe of documents for the case? How and where are potentially relevant documents maintained? Will you be producing thousands of documents or millions? How will you organize these documents? How many witnesses may need to be interviewed or deposed during the course of litigation? Where are these witnesses located and will they be cooperative? 

Rules governing initial discovery disclosures often require the disclosure of applicable insurance policies. To the extent the issue has not yet been raised with the client, use the initial disclosure stage to ensure that the existence of any potentially applicable insurance policies has been discussed with the client. 
To help alleviate your client’s trepidation over the disclosure of potentially confidential or sensitive information (and help avoid any objections to disclosure premised upon asserted confidentiality) negotiate the terms of a stipulated protective order with the opposing counsel at your earliest opportunity. 

“Two tier” protective orders are commonly implemented, and provide both “Confidential” restrictions that shield designated documents from public disclosure, as well as “Attorneys Eyes Only” (AEO) restrictions that limit disclosure to the parties’ counsel (with minor exceptions, such as disclosure to expert witnesses). Note that a client’s “in-house” or “general” counsel may also serve as an officer or director of the company. Thus, be sure that any stipulated AEO restrictions accommodate any such relationships. De-designating confidential or AEO information is another issue that should be addressed by the stipulated protective order. To help avoid indiscriminate and wholesale designations of discovery materials, the protective order should place the burden of establishing entitlement to a “Confidential” or “AEO” designation on the designating party. 

Discovery Disputes

Avoiding discovery disputes, while obviously desired, is sometimes inevitable. If you cannot avoid a discovery dispute, be sure to keep several procedural rules in mind. 

Make sure your “meet and confer” obligations under any applicable local rules or practices are met. Verify if there are any applicable standing orders or websites setting forth the judge’s or magistrate’s rules and policies for handling discovery disputes. Make sure you are familiar with all applicable restrictions on the timing of your submissions. In the Southern District of Florida, for example, all discovery motions must be filed within 30 days from when the violation arises. 


An early and well-planned discovery protocol will go a long way toward streamlining a case. The result will be appreciated by the court or tribunal where the litigation is pending, and will also result in a positive impact on your client’s litigation budget. 

by Richard Guerra
Feldman Gale, P.A.
2 South Biscayne Blvd, 
30th Floor
Miami, FL 33131
Phone: 305-358-5001

South Florida Legal Guide 2016 Edition

Tags: electronic discovery feldman gale richard guerra protocol evidence

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