Picture yourself working on a new case—an employment dispute. The initial meet and confer made you realize the discovery road could be quite long and the time has come to establish your e-discovery protocols. You’re planning for a second meet and confer with opposing counsel and you’ve done your homework on the data that will likely be involved from your client’s perspective. The case is around a dispute over discrimination between an employer and employee, and you anticipate much of the data produced will be emails.
You have your preferred e-discovery workflow in place: near-duplicate detection and email threading to better organize the data from the start, and technology-assisted review to prioritize the review from there.
However, you know from preliminary exchanges that opposing counsel isn’t savvy on current e-discovery technology, and you anticipate some resistance to this plan. Here’s how you can address the other side’s concerns and ensure a more efficient e-discovery experience for both parties—ultimately saving your time and your client’s money.
Consideration #1: Over-prepare.
Get to know your data and its challenges. If you can get as much information as possible up front about the types of information involved, you can get ahead of the challenges both sides face and set your team up for a less stressful project. That means close communications between your legal and collection teams, as well as your client and custodians. You’ll want to come to the conversation armed with plenty of knowledge about the data types, number of custodians, and timelines required.
In this case, you know that the number of custodians will probably be limited to the team that the former employee worked on—that’s about eight people. You also took a quick look at the client’s data map, and with the help of their IT team, you expect to collect at least 300,000 emails with attachments. Come to the conference with this knowledge, having conferred with your team to establish your preferred protocol and timeline.
Consideration #2: Perform early case assessment (ECA).
There’s more than one way to perform ECA, but one thing is for sure—you need to do it before the meet and confer. Don’t be afraid to introduce analytics technology this early on, as tools like email threading and clustering can reveal important information that you can then use during the conference, such as additional keywords or custodians that should be considered. When you’re done with ECA, bring charts and summaries of your findings with you to support your arguments.
For our employment dispute, we know “performance” is definitely a hot keyword. By examining nearby clusters in our cluster visualization chart, we can find additional words to bring the meet and confer.
Consideration #3: Bring in the experts.
Having your technologist in the room will help you answer any unanticipated questions. Encourage your opponent to bring a technologist as well. That said, just requesting that an IT person attend the meet and confer is not enough. Be sure to prepare your technologist and explain what you expect to happen. The technologist will have valuable input about how much time may be involved in processing or loading documents, building indexes, and putting together productions. A judge would be very happy not to be involved in those decisions or to have to schedule another meeting to hash those issues out.
In short, create an open exchange of knowledge about the data types likely to be involved in the case. Some aspect of the matter or the history of the dispute may be important for planning how to conduct a review. So even though you’ve done your homework and anticipate a lot of emails at the start of this discussion, both sides need to be ready for the technology challenges ahead. When people who understand the substance—you and the other lawyer—are in the room with the people who understand the technology, the time will be most productive.
In this case, your client is a bank and there are lots of employee performance and productivity issues related to the dispute. So, during this conversation about the data at hand, you learn that many of the attachments collected will be spreadsheets. You will need to discuss how you typically like to handle these types of documents and how you will produce responsive material.
Consideration #4: Show, don’t tell.
Be prepared to show examples, and be as visual with the data as possible. You can run email threading on a test project before the conference, for example, and bring a screenshot showcasing how the technology better organizes the data. The visual element could play a significant role in convincing opposing counsel that you’re making an effective recommendation—especially when it’s delivered in conjunction with your fair warning about a particularly email-heavy data set. Remind them that the more time you can save in review—for both sides of the courtroom—the happier your clients and the court will be.
As for the technology-assisted review portion of your preferred protocol, share studies that highlight the accuracy of these workflows compared to manual review. Ask your technologist to speak to the mathematical concepts behind the technology, if opposing counsel requests. And use success metrics from real-life cases, if you can. That brings us to our next recommendation…
Consideration #5: Bring evidence to overcome objections.
Let’s think about what some objections could be:
“How do we know the judge will approve analytics?”
You can easily satisfy this objection simply by pointing out that these workflows aren't new. The fact is that use of analytics for e-discovery is widespread and growing in acceptance—by courts, law firms, and corporations. Decisions starting with Da Silva Moore and progressing to Pyrrho add credence to using technology-assisted review.
Bolster your case for using the latest in e-discovery by offering well respected references. Lots of people are using e-discovery technology even if it’s new to this particular counsel.
“My team won’t go for it.”
How can legal teams sell this internally? Offer up some personal experience on how you saved time and money in the past. Did you have to sell a review method to the stakeholders at your client or your own firm? Sharing a great story about how happy you made a client or your peers could be quite persuasive. Provide success metrics and anecdotal experience as evidence to assure your opponent that you will fulfill Rule 26 requirements, but get there easier, cheaper, and more efficiently than with traditional linear review.
Consideration #6: Don’t underestimate a small win.
If opposing counsel just isn’t willing to take on too much when it comes to new workflows, be willing to start small. On this case, for example, what would be the quickest win? Perhaps email threading, so start there and agree to apply that one piece of technology to traditional workflows. Even in the toughest circumstances, you can make big strides with small recommendations that are specific, proper, and proportional for the matter—and letting your opponent and the court see the results first-hand.
Remember, the new Federal Rules of Civil Procedure stress cooperation. Use that to your advantage. When you impart your wisdom with an emphasis on saving everyone time and money, the e-discovery portion of any litigation can go much smoother.