Case teams must be proportional in the e-discovery process. Often, the cost-benefit principle is at the crux of proportionality. To achieve proportionality, the benefit of producing documentation must outweigh discovery's cost.
“Proportionality is like oxygen; it fills every room,” said Mimi Singh, general counsel and director of consulting at Sandline Discovery, during a session at Relativity Fest. “We breathe it even if we are unaware of it.”
During the session, Mimi discussed the importance of being proportional in e-discovery. Here’s what she had to say, including tactics for starting with a more proportional strategy right out of the gate.
Controlling Spend with Phased Discovery
e-Discovery is costly. Costs can run particularly steep if parties don’t engage in best practices.
“I have seen a lot of wastage—companies over-collecting and producing documents with low responsiveness rates,” Mimi said. “We’re losing the battle in controlling cost and litigation spend for our clients.”
One way to start winning that battle is phased discovery. In phased discovery, case teams prioritize custodians to avoid over-collection and reduce costs.
Say a law firm takes on a case with an abundance of electronically stored information (ESI). Their client needs them to review the documents in a cost-effective way. So, the firm would look at the claims and defenses and sequence them by priority.
The firm would then differentiate primary from secondary custodians. Often, secondary custodians' ESI is duplicative or doesn’t add benefit to the case. Sometimes, opposing counsel will request secondary custodian data. In those cases, Mimi suggested relying on the rules of proportionality.
“Ask them: ‘What do those custodians have that is relevant to our claims and defenses?’” Mimi said. “Phased discovery is not the old school way of doing discovery where you produce all the custodians’ data. With proportionality, you lasso the e-discovery arena by limiting the scope.”
Asking the Right Questions
During litigation, attorneys have a duty to maintain technological competence. This means they must be well versed in the ESI relevant to the case. A key way to get a pulse on the important information is through custodian interviews.
“Custodians are in the heat of the action,” Mimi said. “They are your greatest assets in phased discovery.”
Custodian interviews help attorneys understand where the important data lives.
If attorneys ask custodians the right questions, this drives targeted collections.
Mimi suggested having a set of go-to questions for custodians, such as:
- What are your search terms suggestions?
- How complete and what is the strength of your data?
By getting the full picture, attorneys better understand potential gaps in the data. If a firm fails to identify those gaps, it may lead to issues with opposing counsel.
“Opposing could argue you are not producing complete sets of documents. If they are impolite, they will say you are engaging in spoliation,” Mimi explained. “If you do your job right, you are less likely to have ‘discovery about discovery’ conversations.”
Conducting well-rounded custodian interviews can help case teams avoid these conversations, as well.
“Custodians are experts in their own data,” she said. “Don’t be afraid to ask them a lot of questions. It’s like chicken soup; it can only help.”
Negotiating Email Threading into ESI Protocol
During early conversations with opposing counsel, both parties establish ESI protocol. ESI protocol dictates how both sides will define and produce data.
Case teams can use this conversation to further narrow the document universe.
“If you’re lucky, you have been able to do phased discovery,” Mimi said. “If not, this is the time to reduce data volume early on. This is the second bite of the apple.”
How do case teams seize this opportunity? Email threading.
“In these cases, case teams are not using email threading just for organization, to aid review,” Mimi noted. “Case teams are using it for a more aggressive purpose: reducing what they must review and produce.”
Case teams must establish email threading in the ESI protocol with opposing counsel. If they agree, both sides would only produce inclusive email families.
This is easier said than done. In her 13-year career, Mimi has only seen this occur a handful of times.
If opposing counsel isn’t immediately receptive to the idea, don't throw in the towel yet, Mimi urged.
Mimi suggested reminding attorneys of the technical competence requirements outlined by their legal and ethical duties.
“In this age of gigabytes and terabytes of data, technical competence is key,” Mimi said. “Email threading can reduce data volume by up to 20 or even 40 percent. This is a huge win for clients.”
It’s also impactful to familiarize your own case team’s attorneys with technology. They can use their knowledge to talk with opposing on email threading's benefits.
“They can insist that opposing counsel also must be technologically competent,” Mimi said. “Then, they can engage in a meaningful discussion and get the right people talking.”
Preventing ‘Discovery about Discovery’ with Documentation
When conducting e-discovery, documenting processes can sometimes fall to the wayside.
Yet, documentation can prevent opposing counsel's questions about collection and production practices.
“Discovery about discovery can be messy,” Mimi said. “It may result in ongoing allegations, motion practices, and even a magistrate or judge hearing a discovery dispute.”
Case teams can avoid this downward spiral through defensible documentation. Keep logs of the data collected and processed as well as user behavior and the final search terms list.
“Document any discussions that occurred along the way,” Mimi said. “This shows you made efforts to meet discovery obligations.”
Proportionality is an integral part of the e-discovery process. As case teams are tasked with doing more with less and driving down costs for clients, they need to be proactive. Taking a back seat and hoping you didn’t leave key documents out of a production will not win your case. In fact, it may lead to more conversations with the opposing side and the costs of discovery will spiral out of control.
“If you notice a gap in your data, tell the other side. Have in-depth conversations with your custodians and ask the right questions,” Mimi said. “If you are proactive now, you won’t need to be defensive later.”