eDiscovery Daily Blog

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys

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.  Here’s the first part.


Approximately 2/3 of my consulting practice revolves around issues with ESI production. Much of that work involves asymmetrical cases where one side, typically corporate defendants, has the vast majority of discovery. And since my experience is not untypical, what we see in eDiscovery practice is a heavy focus in the eDiscovery world on defense strategy, both in actual practice and educational conferences.

But what about strategy for the Plaintiff’s bar? Do they have different even dramatically different needs simply because they have less ESI?  In discussing this article, I was asked the following questions which we will consider below:

  • Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?
  • Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources? Or does it depend on the type of plaintiff?
  • Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?
  • Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting? Should there be a model for requesting parties?

To research this issue, I decided to begin by asking several attorneys with Plaintiffs’ side experience, past and present, the following question, “What would you say are your top 3 pain points in plaintiffs’ eDiscovery work?”

My query went to the following attorneys:

  • Craig Ball, well known consultant, ESI expert, Special Master, former plaintiffs’ attorney and author of the Ball in Your Court blog;
  • Ariana Tadler, Managing Partner at Milberg Tadler Phillips Grossman LLP & Founding Principal at Meta-e Discover
  • Bob Eisenberg, Director, eDiscovery & Information Governance at Larson Security LLC and Program Director at the Cleveland-Marshall College of Law (CMLaw) eDiscovery Professional Certificate Program
  • Drew Ashby, Wrongful Death and Catastrophic Injury Trial Attorney at The Cooper Firm
  • Jean Martin, head of the Morgan & Morgan Complex Litigation Group in Wilmington, North Carolina

In this paper, we will take a look at their responses and comments regarding the biggest eDiscovery challenges facing plaintiff’s attorneys, as follows:

  1. Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys
  2. Cooperation Challenges
  3. Lack of Competence Challenges
  4. Conclusions

We’ll publish Part 2 – Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys – on Thursday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held this Thursday, May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

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.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.