E-Discovery Goal: Win or Avoid Disaster?
Have lawyers forgotten the goal of e-discovery? EDD articles and professionals seem exclusively focused on avoiding disaster. The real EDD goal is winning the case.
In 1997, I characterized the goals of discovery as: [see note below for source]
A. Achieve the best outcome for the client
B. Minimize cost
C. Learn the facts of the case
D. Prepare offense or defense
E. Fulfill obligations to produce documents
I don’t think that has changed. Producing documents is a requirement of discovery; the goal, however, is learning case facts, telling the best story and winning. We hear countless stories of EDD gone awry. Where are the stories about how a team found the best documents, put together the best chronology and witness binders, and did the best job marshaling the facts?
Winning a case by “doing great EDD” should be newsworthy – but can you cite a single article in the last five years on this topic? Are litigation teams so paranoid about blowing e-discovery that case prep has suffered? If yes, that’s bad. If no, let’s hear the success stories, not just the disasters.
In an earlier discovery era, some were more concerned about winning. I remember the transition from paper + objectively coded databases to scanning + OCR + full-text + coded data.
Sure, we were careful to avoid pitfalls. For example, in serial litigation, inconsistent privilege designations across cases was a big problem. Corporate defendants sometimes did not turn over relevant documents in one state when they had in another. Why? Reviewers did not properly identify duplicates so a document could be in the database multiple times with different privilege designations. We mitigated this problem by using “document footprints” to de-dup.
The real excitement, however, was better case prep and winning. For example, we asked the lead partner to write his “dream smoking gun document”. The paragraph he drafted was literally copied and pasted into the search field of Personal Library Software (PLS was one of the earliest concept search tools). The search surfaced many useful documents – many that we never would have found using the then-standard coded database search and paper pulls or even Boolean searches on a full-text database. The partner estimated that finding the documents so quickly added $250,000 to the settlement value.
Then there was a time a partner was eager to find a document he felt sure must be in the collection. Many a search failed to find it. Then he had an idea: search for the fax number of the person who likely wrote it. Sure enough, even though the fax number was in small type and fuzzy, it had OCR’d well and we found a cover sheet, which quickly led to the document he sought.
Lawyers might do EDD better if they saw as much upside as downside. If anyone has good stories about how they used modern EDD tools to find the best documents and tell the best stories, please comment or send me e-mail to ron at prismlegal dot com.
[You can read more about my experience with this earlier generation of technology in an outline I wrote for a PLI presentation available on this website at Lessons Learned in Litigation Support.]
Update (23 June 2009): EDD consultant Tom O’Connor responds to this post in What Is the Goal of E-Discovery?. He writes:
“I disagree. I believe that there are two major additions to the goals of discovery since the amendments to the FRCP and they are both significant new obligations. The first is establishing the preservation of electronic documents at a point before the litigation actually commenced, that is that a proper ESI litigation hold strategy was employed and the second is the duty to cooperate in order to better facilitate FRCP 1.”
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