Todd Heffner of Jones Walker. (Courtesy photo)

Costs of eDiscovery continue to rise as an ever-increasing number of documents, emails and other forms of evidence are being created, making it even harder to manage expenses in “small” cases. What counts as a “small” case is hard to define, but what we're worried about here is where the costs of discovery can swallow the amount in controversy. More importantly, to avoid that fate, the two most important tools at your disposal are competence and cooperation.

Competence starts with you. The better you understand the available resources, technology, the law, any local rules and your own client's documents, the better chance you have of keeping costs under control. If you don't feel up to the task, the Sedona Conference publications are a great place to start, but it's easy to find helpful (and shorter) articles on whatever specific topic you need guidance on.

Make sure you are familiar with Federal Rule of Civil Procedure 26(b)(1) and its proportionality factors (and its state equivalents). Proportionality should be a great basis to keep discovery limited in a “small” case.

Competence doesn't stop once you've exchanged documents with the opposing party either. Understand that there are tools out there that will help you avoid needing to lay eyes on every single document the opposing party produces to you. Using Technology Assisted Review, for example, can help identify the most interesting documents to look at first. Unfortunately, TAR might be too expensive on a small matter depending on how you license the software, but it's a great tool if you have it. At a minimum, consider some keyword searches rather than review every document. Finally, while not a tech tool, ask your client to assist in the review of documents—they might have time and energy to devote to the matter instead of dollars.

If opposing counsel is unsophisticated, it might be worthwhile trying to educate them. Not everyone will be receptive to unsolicited advice from their adversary, so tread carefully. While this strategy may cause you some hesitancy, it will often be less work to educate your adversary in the early stages than to file a spoliation motion because they didn't understand how to preserve their client's Facebook account.

Cooperation is the other key—most of these suggestions on how you might go about limiting discovery will require agreement and compromise from opposing counsel.

Agree to a phased or iterative approach to discovery. Limit the number of sources or custodians to collect and produce from initially. Then, if necessary, go to additional sources and custodians. This strategy can be even more effective if you can agree to mediate between rounds of document discovery.

Agree to a limited number of custodians and sources generally, whether phased or not. Agree to limited privilege logging. Agree to a native production rather than pay a vendor to convert documents to .tif or .pdf.

Keep in mind that you can quickly consume too much time trying to negotiate a complicated discovery protocol designed to keep costs down. That said, one thing worth insisting on—no matter how the parties agree to produce documents—is that the text be easily OCR-able. If the goal is to keep costs down, you must be able to word search the other party's documents once they're in your possession. You could even go so far as to get written agreement that the documents must be reproduced if they don't comply with this requirement.

If the other party is refusing to cooperate, attempt to engage your judge to take a more active role in the case. This can certainly be a tricky subject to broach, but there seems to be a misconception out there that judges hate all discovery disputes. Having had a chance to hear many judges offer their perspectives on this topic, the reality is slightly more nuanced: Judges hate discovery disputes where the parties did not try to work out their differences with each other first. Judges embrace their role in administering the Federal Rules of Civil Procedure (and state equivalents) to achieve the “just, speedy, and inexpensive determination of every action and proceeding.”

There are some other strategies you can employ, as well. Rather than default to a potentially expensive document review and production platform, consider a less expensive technology, like Adobe Acrobat. One of the best resources to learn how to implement this option is the Acrolaw Blog (http://blogs.adobe.com/acrolaw/). Microsoft Office 365 has some pretty robust discovery tools you can use, as well.

Finally, should a dispute arise, avoid going straight to motions practice. Start by picking up the phone. If that doesn't work, consider filing a letter with your judge to both frame the issue (rather than brief it fully) and request a conference to discuss the issue.

Todd Heffner is a construction litigator and ediscovery specialist at Jones Walker's Atlanta office.