eDiscovery doesn’t have to be a mad scramble. Cost-effective, smart discovery means taking a logical, thoughtful approach.
I’ll be in seven different cities speaking at events over the next six weeks, and inevitably, I’ll get asked the same question over and over: How can I do discovery with ESI more effectively for less money?
Nothing like an easy question to answer. I’ve handled hundreds of matters from a $7,000 insurance case about nail polish to $100 million class action about engines, and yes, you are correct that every matter is different. But over 20 years of practicing and focusing exclusively on discovery for the better part of that time, I can tell you this: saving money in discovery is a three-step process that’s pretty common sense. 1) breathe, 2) plan, 3) use technology wisely.
Step 1: Breathe.
The tendency is to dive head first into discovery, drafting up overbroad requests and then wondering why you got dumped with tens of thousands of documents. Or, to not engage with discovery until the last minute and then scramble. Instead, just stop. Sit back and think about what you need to do with your case, what the client’s goals are, and the most efficient path forward.
Now, I’ll tell you that if you can start this process before the next complaint hits your desk, you’ll do an even better job of being efficient and effective. I also know that you are thinking I’m crazy to even suggest that, and I’m okay with that. But you know that time when the case suddenly goes away and you have a schizophrenic week of being both euphoric that your insane pace is over and fear that you’ll not have work to do? This is a perfect time to breathe. Now go to step 2.
Step 2: Plan.
Yes, I know I had the gall to suggest being proactive instead of reactive in litigation. But you asked, so there it is. What does planning mean, you ask? In this context, it means thinking about the decisions that you are going to have to make on the fly for a client when a new matter arises and knowing what you’ll have to consider. Creating a plan for each client for the different types of matters and working through them on a matter ensures that you are making comprehensive, reasonable decisions on the scope of preservation, collection, and production. Then track them.
So what do I mean by planning? Good planning for discovery involves five key elements. If you are planning proactively, meaning before a matter hits your desk (yes, that’s a thing), then think generically about these five points. Obviously, if the matter is on your desk or you are filing it, you will have a specific case plan.
1. People (or custodians) at each party. Who are the key people? Your list of legal hold recipients is likely much longer than the list of people you talk to and ultimately collect information from. Be sure to track your decisions about why you chose not to talk to a custodian for later.
2. Identify the date range of relevant information. Stay focused on the time period where relevant information lives. Tell your PM so a date range filter can be set on review software. Often, keeping that date range in the front of your mind will allow you to ignore sources of voluminous ESI with a clean conscience as long as your date range is reasonable. I suggest getting agreement from the other side before you commit to it.
3. Identify the sources of ESI at issue. This is a two-part process — knowing what the source is, who manages it, how you get at it, and the date range of information in it is part one. Part two is understanding any complexities involved in collecting and handling that data. For example, we are working with a project management tool for a client that requires extra work to pair the metadata back up with the PDFs after exporting it. That’s time and money. With planning, it’s done cost-effectively. This part of planning is usually the most involved — getting out ahead of this stage is crucial.
4. Identify third parties. Having to go to other parties for data is one of the biggest time sucks in the discovery process. Have a plan for what you need and see if you can work together with them cooperatively. Be narrow in your requests and talk to the third party about issues with their ESI, getting it, etc. Help them help you where possible.
5. Formalize agreements between the parties. I firmly believe that even the smallest matter needs some type of formal agreement as to how ESI will be handled, and don’t forget the ever important FRE Rule 502(d) order.
Planning and modifying your plan as you move through discovery will give you a framework for new matters going forward. It also helps identify the issues that need to be addressed in an ESI protocol between the parties. Every case involves different complexities that have to be addressed. Planning is the best way to stay out in front of them so they don’t cost more down the line.
Okay, you’ve planned and gotten targeted data from your client and the other side. Now the cost kicks in and you have to load and handle the data. You’re ready for step 3.
Step 3. Use Technology Effectively.
This step can be an entire article in itself, so here are some main points:
1. Choose your technology wisely. You don’t always need the biggest and the baddest. But better features that will let you manage the type of data you have are super important. The upfront cost saves considerable time downstream.
2. Have a plan for loading and looking at individual custodians data vs. loading everything and doing one large scale review. I like to spend some quality time with the data of the truly 1-3 key custodians to get a feel for who really has the data on specific issues and what we need to load and focus on. Pay attention to how much data de-duplicates out of your set and use that to improve your planning.
3. Set up a tagging structure in your review tool and include a timeline checkbox. Tag documents that should go in a case timeline so you can find them quickly. I haven’t seen a review platform yet that has a good timeline feature (tell me if you have), and I really need one. Hint, hint developers. Use the tagging structure to quickly issue code documents during review.
4. Use the features of your platform to do better review. I see a ton of money wasted on inefficient reviews. Work with your team or your review provider to gather metrics and monitor the review to see where the dollars are slipping through the cracks. You don’t need to be doing separate reviews for relevance and issues — they can go together. Get a good, solid review team and educate them.
5. Avoid getting lost in the data. Just because you have thousands or millions of documents doesn’t mean that should control your thought process. Stay focused on the claims and the elements of those claims that matter. Remember the money documents? That’s what you’re looking for.
Cost-effective, smart discovery means taking a logical, thoughtful approach. Planning is good on so many levels — it allows you to make reasonable, logical decisions, to cooperate better with the other side, and to keep your client apprised of costs and budget issues. eDiscovery doesn’t have to be a mad scramble. Try this three-step approach and let me know how it goes.
This article first appeared on Above the Law.