Managing Small Cases – Excellent Sedona Conference Resource

The Sedona Conference recently published a public comment version of its “Primer on Managing Electronic Discovery in Small Cases” (Dec. 2022).

There has long been an interest in low-cost technology. For example, two decades ago, I wrote “Low Cost Litigation Technology” (Md. Bar Journal Nov./Dec. 2000).  Similarly, Craig Ball has blogged about the EDNA: Still Cheap and Challenged | Ball in your Court (craigball.net) (Apr. 15, 2016), and E-Discovery for Everybody (craigball.com)(2009).  And, about a decade ago, Bruce A. Olson and Tom O’Connor authored “Electronic Discovery for Small Cases” (ABA 2012).

The Sedona Conference Primer adds a significant contribution.  The premise of the Primer is that “most cases are small cases, and most of those are pending in state courts.”  While there are many excellent points about proportionality and cooperation, one exceptional aspect is that the Primer “identifies some low- or no-cost tools and technologies” for cases with a “tight budget.”

First, the Primer offers a non-exhaustive list of factors to define a “small case.”  Id. at 4.  Rather than “bright-line rules” it suggests discussion and cooperation to define a “small case.”  Id.

Second, the Primer emphasizes proportionality.  Id. at 6. This involves adaptations to reduce costs.

Third, the Primer provides a number of “tips” to tailor e-discovery for the small case.  Id., passim. These include early discussion, custodian interviews, a reasonable legal hold, and guidance on self-help collection, id. at 9, 11-12.[1]  The Primer suggests that proportionality for the small case may dictate preservation-in-place and lists some factors to consider in making that decision.  Id. at 10.  It also addresses built-in e-discovery solutions, such as those discussed in District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data.  The Primer notes: “Consideration should be given in small cases to how best to design the collection and search process to save costs and limit volume.”  Id. at 19.  In short, the tips cover the e-discovery spectrum from preservation through trial.  Id., passim.

However, it is in §VI – “cost-effective use of discovery technology in small cases” – where the Primer shines.   For example, it describes the use of “PhoneView,” an inexpensive application to collect and produce text messages.  And, it discusses the self-collection methods provided by some social media applications, including X1 social discovery, which I demonstrated in a recent program. See Md. State Bar Association Program on Social Media.[2]  The Appendix adds to the specificity with mentions of specific low-cost software, as well as links to video examples.

Cooperation and proportionality have become critical factors in contemporary litigation.  The Sedona Conference Primer is an excellent resource for implementing those goals.

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[1] For additional detail on self collection, see generally Maker’s Mark: A Different View of Self Collection, Self-Identification and Self-Preservation: A Fool for a Client?, and, Unsupervised Self-Collection Predictably Led to Problems.

[2] The Primer suggests that licensing X1 may be cost prohibitive for one or two small cases.  In my experience, few lawyers have only one or two cases and X1 can provide an economical and proportional option. In the Appendix, the Primer suggests reaching out to a vendor to spread the costs. While that may be a useful course of action, there are many options, and it may also be prudent to contact X1 directly.