Entrepreneurial Law

A colleague of mine brought to my attention two recent federal cases in which the courts elected to deny motions to compel electronically stored information (ESI).  In Kay Beer Distributing v. Energy Brands, Inc., the Eastern District of Wisconsin determined that, among other things, Kay's request for every e-mail with their name in it was too broad.  The court also considered in its determination  the fact that Energy Brand's counsel had offered to work with Kay to do more directed keyword searching of the e-mail engine, but Kay declined. 

In my opinion, these cases are indicative of a trend that you'll see more prevalent in litigation, whether you're talking about technology litigation or run of the mill commercial litigation.  When ESI discovery came onto the scene, judges were more prone to let the parties just duke it out and allowed for more expansive discovery requests.  In my opinion, as the frequency of requests increase and judges are exposed to more and more decisions related to ESI, they are becoming more educated on technological capacity and will become less and less likely to allow for expansive discovery.  

This leads me to the actual point of this post.  For the entrepreneur, there can be significant benefits to cooperation in discovery related to ESI.  Long before I became involved with Indiana technology litigation, I was fortunate enough to participate in some large scale discovery productions that involved searches electronically stored information.  One of the pivotal points of the production involved the necessity to explain to the Court and the opposing party what they search system would and would not do.  Much to the chagrin of my boss at the time, I suggested that we allow the opposing party to have direction in their search by doing it in conjunction with us.  The Court called this an "organic search" (a term that I hated, but that ultimately stuck to what were were doing).  It involve the opposing counsel conducting the searches with us and then directing further searches based on those results.  With a limit on the time to conduct the search, we were able to minimize defense cost on the issue, appease plaintiff's counsel, and make the judge happy.  And all we, as defense attorneys, had to do was the searches that we would have had to do anyway.

My point is that with technological capabilities comes a necessity to think outside of the box.  As a business owner, you may be able to minimize your exposure and costs by simply allowing the other side into your office while you're doing their search.  As an attorney, our jobs are to make sure that the appropriate safeguards are in place to protect our client, but also must be willing to effectuate for them the best result.  Obviously, some areas of law, like privacy litigation, medical records, etc. are going to be less viable for this type of solution, but overall, there can be an upside to cooperation.  Think about it.