Case Study: Outsourced eDiscovery Counsel

Project: eDiscovery Counsel

Client:  Major domestic beverage manufacturer

The challenge: Sometimes it pays for organizations to have a go-to for their eDiscovery and Information law needs. One of ESI Attorneys’ clients, a major domestic beverage manufacturer, retains us regularly to act as eDiscovery counsel in various types of matters. The include (but aren’t limited to) distributor termination cases, marketing class actions, employment discrimination cases, breach of contract matters, contract brewing disputes, and regulatory investigation matters.

ESI Attorneys is that go-to – and we help them leverage the knowledge we gain from each case to improve processes for identifying, preserving and collecting data instead of reinventing the wheel every time.

How ESI Attorneys addressed the challenge: We have an ongoing relationship with this client and frequently act as their fully outsourced eDiscovery counsel. We work hand-in-hand with their in-house counsel and attorney team to create better outcomes. Here are a few examples of our work together.

Litigation Strategy: What do you do when you know information exists that could impeach a former disgruntled employee that’s planning to testify against your client? You find it – and that’s exactly what ESI Attorneys did. The information wasn’t anything that would have been found in the general review of information for the case. Why? Because it wasn’t about the issues in dispute. Rather, we combined our knowledge of the client’s business with:

  • Litigation strategy on impeaching a witness
  • Typical employee behavior in communicating with colleagues
  • Thinking on how people communicate electronically

The long and short of it:  we were able to identify close acquaintances and review their email as well as consulting with the company’s labor and employment counsel. This strategy could provide us with tangible proof of what we already knew – that the employee was disgruntled and acting in a retaliatory manner.  That was very significant for the client in managing the outcome of the case. It’s also a powerful example of how our litigation strategy experience and our focus on technology (how information is created and stored) can combine to be a powerful asset for our clients.

eDiscovery Strategy: In a matter in federal court in Puerto Rico, the client retained ESI Attorneys to create and implement the eDiscovery strategy for the matter. This included interviewing custodians, coordinating collection, culling and reviewing  data, negotiating the scope of eDiscovery with opposing counsel, and assisting outside counsel on strategy related to the information. The result? When opposing counsel proposed over 100 custodians, ESI Attorneys negotiated it back to the original set of 14 custodians our client had identified, plus 5 additional individuals based solely on looking at the data.

We also worked directly with opposing counsel to agree on key search terms AFTER reviewing the data and determining what would provide both sides with appropriate information. Usual practice is for counsel to pick search terms before consulting witnesses or reviewing data – a practice that has been shot down by courts as not meeting the standard required under the Federal Rules of Civil Procedure or the common law determination of reasonableness. We offered a more efficient procedure, resulting ultimately in cost savings for both sides. We prevented costly (and unnecessary) procedures and saved several hundred thousand dollars for our client in unnecessary collection and review of data.