Whilst I was at ILTA in Nashville in August, I moderated an eDiscovery discussion with Steve Akers, CTO of Digital Reef and Peter Mansmann, CEO of Precise Litigation Technologies. Digital Reef has now edited our discussion down into three short videos and published them on its blog under the heading Preparing eDiscovery Data for Review. The three sections appear under the titles An Introduction, Strategies, and Tools and Techniques.
I used the introduction to draw attention to the gap which so often appears between the objectives – the clients’ objectives and those of the court – and the discovery work done by the lawyers in purported compliance with those objectives. US sanctions cases tend to involve some permutation of breaking the rules, failing to produce documents, and less than open behaviour vis-a-vis opponents and the court. It is no less a failure of duty when they disclose too much – throwing piles of irrelevant materials at opponents is often used as a tactic, but it is more often done, I think, because no one applies their mind to the proper scope of discovery. It is not a binary option – disclose it all or get sanctioned; there is a middle ground.
The same is true in the UK, even if we lack the risks which US-style sanctions bring. The courts in both jurisdictions are coming under pressure to hold down the costs of discovery. The paradox is that those who complain about it – the clients – are the very people who could control it, partly by the way they manage information on their own systems, and partly by negativing their lawyers’ assumption that they want them to fight for them in every last ditch. The cost of procedural infighting, when added to a lack of knowledge about what are, after all, the clients’ own documents, can add significantly to litigation costs which do not bear at all on the issues, the merits or the substantive arguments.
The first of the three videos is largely taken up with my observations of this kind. In Parts 2 and 3 I pick the brains of two very experienced players in eDiscovery and invite them to suggest how we might reduce costs and focus on the things which matter.
In what may appear to be an unrelated episode, I recently recorded a webinar for Virtual LegalTech with Bill Belt and Daryl Shetterly of LeClairRyan and with Heather Bryden of Capital One Bank. Its title was Unbundling Litigation: Selecting and Using eDiscovery Counsel, and we focused on the benefits of using specialist lawyers to handle eDiscovery alongside the merits counsel.
The connection is that I am taking part in a panel session on Day 1 of the Masters Conference in Washington along with Steve Akers and Bill Belt with Shawnna Childress of Navigant as moderator. The title is Early Case Assessment (is it working?) and I think it likely that some of the themes from the earlier events will recur in the ECA panel.