eDiscovery Daily Blog

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday and part two was last Thursday, here is the third part.

Cooperation Challenges

Now let’s turn to some of the individual responses.  As I mentioned in part two, the most popular choice for plaintiff eDiscovery pain points was cooperation. Bob Eisenberg, like several others, had an answer that bordered on the protocol issue, saying that:

“… there is, it seems, frequently, an almost cavalier attitude to understanding eDiscovery technical aspects and a lack of necessary skills in connection with the subject of forms of production, for instance. This sometimes extends to eDiscovery jurisprudence, as well and leads to inefficiencies and lack of defensibility in the production of ESI.”

Drew had a similar response in saying that the lack of cooperation was often manifested in a “hard line attitude” with a common approach by defense teams of saying that their proposal was an  “…industry preferred standard” with no room for negotiation or, alternatively, wrangling over minutiae of details such as metadata or load file separators.

Both Jean and Ariana mentioned the example of a repeated insistence on the use of search terms in the blind by Defense teams. As Ariana stated,

“Application of search terms that are unilaterally selected by and applied by opponent with production that follows without QC/validation/testing and then the inevitable erected proportionality argument by the opponent that it need do no more.”

Craig had an interesting response that seemed to address cooperation so I counted it there, when he said that,

“As well, plaintiffs’ lawyers do an abysmal job of drafting requests with the specificity and precision needed to forestall successful proportionality objections.”

Finally, both Craig and Drew had an answer that addressed motion practice, Craig with his reference to the ongoing use of outdated boilerplate pleadings by both sides and Drew with his comment regarding “an increased focus by Defense teams on arguing ‘discovery about discovery’ motions, especially with regard to 30(b)(6) depositions.”

We’ll publish Part 4 – Lack of Competence Challenges – on Wednesday.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.