Draft in progress: eDiscovery Best Practices for Small Cases

For some time now, practitioners have been calling for more tailored guidance regarding efficient and cost-effective ways to achieve eDiscovery best practices in cases where the volume of discovery, the stakes at issue, or the available resources for eDiscovery are limited. While nearly all cases involve eDiscovery, most do not involve exabytes of data, nor bet-the-company litigation, nor do they necessarily require the use of expensive software tools or extensive use of outside support vendors. On the contrary, as one commentator has remarked, “[t]he vast majority of cases filed, developed and tried in the United States are not multimillion dollar dust ups between big companies.” Yet, the ever-expanding ethical obligation of technical competence required for handling all client matters does not overtly distinguish among cases based on their size, significance, or budgets. In this regard, practitioners and jurists faced with so-called “small cases” are just as deserving of insightful guidance on how to best handle eDiscovery issues as those who are handling large, multidistrict, complex commercial litigations. With this in mind, the eDiscovery Best Practices for Small Cases drafting team will develop a commentary that addresses: (i) how a “small case” should be defined; (ii) issues arising in small cases that may not be specifically addressed by existing Sedona work product; (iii) tailored tips and guidance for practitioners and jurists regarding achieving eDiscovery best practices in small cases; and (iv) the appropriate role of technology in small cases, including, for example, when predictive coding/Technology-Assisted Review might make business and legal sense for a smaller case.