by Ronald J. Levine, Esq., Canaan E. Himmelbaum, Esq., and Michael J. Glick, Esq.

Many food and beverage manufacturers are facing threats from governmental agencies and consumer fraud class-action suits for the alleged ill effects of their products on health, obesity or for questionable labeling claims. This type of litigation can become excessively expensive and time consuming, and often includes electronic evidence, requiring the use of electronic discovery (e-discovery) tools and techniques to identify documents that are relevant to the court.

The good news is that food and beverage companies can find a path to control and reduce their costs stemming from the ever-increasing tide of litigation. The first step in attorneys gaining a sense of control over an impending case is to achieve a birds eye view of the electronic data in question and conduct early case assessment (ECA) to make strategic decisions about how that data will impact the case. Decisions made in the early phases will impact the process for reducing datasets defensibly, managing budgets and determining reasonable settlement values.

Establishing a Discovery Plan

By the time the plaintiffs lawyer has filed a complaint, the key documentsthe label, advertising and the publicly available regulatory storywill already have been reviewed and exploited by the plaintiffs. Discovery requests will predictably focus on internal email correspondence in product development, testing, copywriting and marketing areas, as well as financial information on sales, profits and distribution. Understanding what those documents and communications mean to the value of the case, and the chances for prevailing, is key to making rational decisions and controlling costs. This can often be accomplished through sampling.

Having an informed understanding of the datawhere it lives and how it can be foundputs one in control of the process and will result in a more focused and less expensive discovery process. The alternative, when counsel fail to discuss data in detail during the meet and confer conference, often results in more time spent arguing about discovery than the merits of the case, driving up costs and complicating the litigation.

Leveraging modern search technology, including ECA tools is paramount. Spending time drilling down to the most relevant data on the front end of the e-discovery process saves costs and expedites the later stages of review. Since the corpus of documents requiring human review is smaller and the review rate is higher, this results in greater accuracy and lower costs.

Best Practices For Deploying An ECA Solution

1. Use a comprehensive solution. At its core, ECA is a process. But, like most e-discovery processes, the better the technology supporting the process, the more efficient and defensible the process will be. ECA tools that examine data with more than just Boolean and keyword searches are the most successful in predicting costs and evaluating data. The best tools mine information from data sources, communication patterns and metadata to deliver the most powerfuland accurateresults.

2. Keep the process as simple as possible. Simplicity is also a key consideration. Counsel should not need a degree in computer science to understand the technology they use. Therefore, the most accurate ECA tools for lawyers are not those with the most complex bells and whistles, but rather the ones that are powerful, yet straightforward and easy to use. Simplicity prevents errors and saves money by avoiding the need to correct costly mistakes.

Look for an ECA platform that integrates with your review platform. An integrated ECA solution further optimizes the review process. For instance, seamless integration ensures that all work product developed during ECA will be retained during review and enable one to select documents for additional scrutiny, redaction or higher level review, reducing the risk that important knowledge will be lost in the process of transferring it between applications.

3. Ensure that the ECA process is defensible. To pass muster before a court or government agency, the e-discovery vendor and the ECA process must be defensible: it must be complete, well documented, consistent and repeatable. Even before collection begins, ECA helps defensibly reduce data for review. When organizations are unsure about which custodians or data sources to search, an ECA tool can fill the knowledge gap by assessing all likely data targets and ensuring that potentially relevant information is preserved. This decreases the chance of expensive discovery disputes downstream. ECA also helps organizations avoid the risk of inadvertently producing privileged or confidential documents by locating potentially sensitive data sources. With an ECA tool that has grouping methodologies that offer reviewers a better context for documents, it will be easier to identify privileged documents that might otherwise go unnoticed.

ECA can help organizations harness the morass of unstructured data they are collecting into useful, coherent and organized knowledge. Moreover, this centralization improves tracking and consistency across multiple matters and outside counsel, helping to achieve even greater defensibility and cohesiveness throughout the various teams that touch the case. Clients who utilize ECA benefit by understanding more about the challenges they face in time to make a difference and then proceed with smaller haystacks and better methods to find the needles that will enable their victories.

Ronald J. Levine, Esq., is partner and co-chair of the Litigation Department at Herrick, Feinstein, LLP. His practice concentrates on complex corporate litigation, especially multi-party actions. With over 30 years of experience, he specializes in class-action defense in the consumer products field, with a focus on the food and beverage industry.

Canaan E. Himmelbaum, Esq,. is vice president of sales for Advanced Discovery. Prior to his current position, Canaan practiced law for eight years as both in-house and outside counsel. During his tenure at Glanbia he was responsible for important aspects of the companys litigation portfolio, including eDiscovery. He has been integral in rolling out the Food Litigation eDiscovery Initiative at the company and continues to assist food and beverage companies with their ongoing needs.

Michael Jeffrey Glick, Esq., is senior executive vice president of technology solutions at Advanced Discovery. Over the past 25 years, he has focused on creatively implementing processes and procedures in the legal services industry to effectively reduce costs while increasing client service levels and satisfaction.