The First Post – People and Process in the New Era of Discovery
This is the first piece for the new Hilgers Graben knowledge base focusing on the process, people, logistics, and business of complex discovery.
Why write about this topic?
Anyone reading this likely knows the importance of the discovery process in litigation and investigations. Winning or losing a case depends on zeroing in on the evidence—from the helpful facts, the “bad” facts, and even the facts you wish existed but do not.
Our thesis is that complex discovery today requires expertise in a number of disciplines: legal expertise, logistical expertise, technological expertise, business understanding, and the intuition and big-picture common sense to pull it together in a cohesive and strategic whole.
The differences between the “old way” of handling discovery and the new way reveals what we mean.
The Old Model
The pre-ESI (“electronically-stored information”) model was time-tested and intuitive. A lead lawyer (maybe with the help of an associate or two) collects a small set of documents, produces a subset of those documents, asks for a small set from the other side, and goes to trial.
In the old model, the lead lawyer retained ownership of the entire process, and her knowledge of the client, the case, and procedural process was sufficient to enable responsible and efficient stewardship of discovery from start to finish. There might have been an outside vendor who would help her make copies of the documents, or bates label them, or help with their production. But the lead lawyer was making all of the strategic calls.
The ESI Era
The old process model of discovery has been swamped by the new ESI era.
And it is not just the volume, although the volume is immense. Instead of a few banker’s boxes of documents, data now is measured by gigabytes and terabytes. Millions of records for a particular case are common. And, as the reliance on digital systems grows, the data sizes just get bigger.
The technologies are changing too, both as to the data you must collect and what you can use to tame the volume of data.
There are new data formats to identify and preserve: in addition to email now you need to think about social media, calendars, text messages, smart phones, instant messenger, Slack channels, along with new technological tools and platforms that seem to change every year.
At the same time, technological e-discovery solutions are proliferating. Go to the e-discovery industry’s yearly conference in New York and you’ll see dozens, if not hundreds, of different do-it-all technological tools that promise to cut the discovery costs.
Making the process more complex is the fact that the legal teams and the service provider marketplace have changed and fractured. No longer are lead counsels expected to handle all of the discovery, end-to-end, in a complex case. The paper vendors of old now offer technology to help host, process, and churn through data. Instead of looking just at law firms, in-house and outside counsel also need to look at technology providers, managed services providers, legal staffing companies, discovery counsel, forensic experts, and the like.
Here are just a few discovery questions that can come up in a typical case:
• How – and for how long – do you store and preserve your data?
• What custodians do you pull from?
• Who executes your collection?
• How does your iterative knowledge of the facts inform which custodians to discuss?
• What search terms should you use?
• How do you evaluate the search terms by the other side?
• How might you analyze the other side’s proposed search terms?
• What technological tools should you employ to review, host, and process data?
• What is the cost of those tools? What is your anticipated return on investment for this technological spend?
• What questions can you ask of your outside team to ensure they can competently use the technology?
• What is the workflow?
• What exactly is the second pass review and who should perform it?
• Who is responsible for privilege calls?
• Do you consider TAR (“technologically-assisted review”)? Managed review services? How might your use of these tools impact the scope of your second level review?
• How do you maintain control over the team to ensure consistency and avoid redundancy?
What are the right answers to these questions? Who should answer them? Who should execute the process and plan? Most importantly, how do you know if you are getting value for your discovery spend?
It can be exhausting and expensive. And it is difficult to tell if you are getting value.
So why are we writing about this topic? To help make it less exhausting, less expensive, and to help you know when you are getting value.
We think there are some great e-discovery blogs out there that focus on various pieces of the process. You can find some excellent blogs that will give a great summary of the recent cases and decisions relating to e-discovery. Other blogs dive into the technological trends for e-discovery.
But because we think the process is multi-faceted—requiring knowledge of the business, the process, the technology, and logistics of discovery, and how they all fit together into one whole—we think a knowledge base should address all of these areas. And present it in a format that is easy to read, practical, straightforward, and actionable. Ultimately, we hope our series helps you start to optimize your own people and discovery process model.
Who are we?
We are the veterans of dozens of complex discovery fights. We’ve been involved at all stages—we’ve led the case, we’ve run the discovery, we’ve handled the first-pass review. We have hired vendors, we have worked in large and previously unfamiliar teams. We have worked with the largest (and smallest) law firms in the world, some of the biggest (and smallest) companies in the world, and on some of the highest-stake (and lowest-stake) matters. We used to work at BigLaw working on all aspects of discovery, from hiring first pass reviewers to handling depositions; we now are entrepreneurs and innovators who think that the discovery industry could use some disruption.
Who is this for?
Primarily, this knowledge base is meant to enlighten the practical side of discovery, for the in-house and outside practitioners who want to reassert control over discovery spending in the ESI era. If you are looking for direction to navigate through the modern e-discovery landscape, then we invite you to join us as we explore the myriad topics that today’s practitioners face as they strive to meet their discovery obligations and organize evidence into a winning case.