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Because litigation is an art, as well as a science, discovery agreements are a function of the effort put into them. Having consulted on hundreds of discovery agreements, I have observed they are only as effective as the willingness and creativity of counsel to use them to strategic advantage. Similarly, attention to search methodology in discovery agreements yields benefits. I often see parties rush to list keywords without taking time to understand the context in which those keywords will operate. One common error is that parties will agree to keywords without understanding whether and how their — or their opponents' — systems can be searched. Another error is to presume all electronic docu- ments are searchable within their native systems. They are not. These errors can be costly, as failure in keyword search- ing can lead to under- and over-inclusion in collected docu- ments. Often, these errors are compounded in developing search terms aimed at e-mail systems. Most e-mail systems are not built to permit keyword searches within attachments (except the subject line); yet most keyword lists are aimed at "discovering" text within attachments. Counsel should dis- cuss the limitations of the information management systems being searched and adapt search strategies and keywords accordingly. Meet-and-confer conferences can also prevent technical issues from becoming a sideshow, but only if parties discuss those issues before production. Failure to do so can result in unviewable and dropped images, indecipherable descriptions of documents, or surprise costs at a later stage of the litiga- tion. Counsel often use different software to review and store documents (while some do not use any review software at all, which carries its own challenges for proper documentary exchange). Therefore, counsel should discuss the technical formats for the exchange of electronic documents, as not all load file formats are compatible, and designate a technical contact in order to address such non-legal issues. By identify- ing what information should be handled by technical experts, rather than counsel, parties can lower costs associated with documentary exchange. I often see parties failing to consider the format in which they will produce documents, and therefore receiving data of marginal use. For example, while most parties continue to exchange documents in image format (either tiff or pdf), some are opting to exchange certain file formats natively. Excel spreadsheets are frequently produced in native format, as are audio- and video-file formats, and complex graphical formats such as AutoCAD drawings. This is a useful development in many circumstances, as there is better quality information available in the native file format, and exchanging these docu- ments in native format can lower production costs. Another "technical" issue often overlooked in meet-and- confer conferences is the format, nature, and character of information within Schedule A. Although this information is often specified by practice directions, many no longer strictly conform to how electronic documents are processed and what information can be made available at a low cost. As more parties collect documents electronically, they have the option to exchange extractable metadata rather than hand coding all documents, agree how to treat documents that have no extractable metadata, or hand code only a limited number of documents. For large collections, decisions about what infor- mation to hand code into Schedule A can have a big financial impact. I have also seen parties agree to hire a single vendor to code Schedule A-related information (following a privilege and relevance review) by pooling data to lower costs. How- ever, there are limitations to the utility of extractable metadata that counsel should consider. Other technical items to consider, including in discovery agreements, include: detailing processing instructions, as pro- cessing can affect presentation of data; the exchange of excep- tion reports; metadata date stamp and treatment, including the effect of daylight savings time and multiple time zones; and the need for escrow provisions where data is held by third-party service providers. It may be that none of these fac- tors affects that data in your case, but it's important to think about each one throughout the meet-and-confer process. Finally, I have seen effective use of stipulations through the meet-and-confer process. In discussing the nature of the par- ties' information management systems and the data contained within them, counsel are frequently electing to stipulate infor- mation about these systems, particularly where this is not material to the issues in the litigation. Such stipulations can also provide comfort to certifying counsel, particularly where the discovery agreement includes provisions stating that the authenticity and admissibility of electronic evidence is not in issue in the litigation. Dera J. Nevin is the senior director, litigation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm's e-discovery operations and can be reached at dnevin@mccarthy.ca. www.CANADIAN Lawyermag.com JULY 2011 19