In my last column, I discussed the revolution that e-discovery has wrought. To briefly recap, e-discovery has turned discovery upside down. E-discovery has shifted the primary truth-gathering function in the litigation process to the location, search and understanding of electronically stored information (ESI). Some cases will still require significant conventional deposition discovery, and some cases will require trials, but the focus of the truth-finding function, especially in commercial cases, has now shifted to we would traditionally call “document discovery,” which today we call “e-discovery.”
This does not mean gathering all the relevant ESI “about, related to or concerning” every conceivable topic in the litigation—that is the killer mistake. E-discovery starts with the concept of important information. Relevance is necessary but no longer sufficient. Rule 26(b)(2)(C)(iii), a rule that somewhat ironically predates the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, mandates that discovery be proportionate to the case. By “friending” e-discovery, to borrow from contemporary parlance, we now have the increasing capability to get closer to the truth sooner rather than later, without the heavy financial and opportunity costs of years of litigation.
But instead of hurrahs and friending invitations, e-discovery has been greeted with a welcome normally reserved for the plague. It has become a dreaded litigation sickness unto death. Far from providing a million “likes,” many attorneys would prefer to unfriend e-discovery without having ever friended it in the first place.
Of course the increasing volume of ESI presents challenges. These challenges, however, have been amplified (and exaggerated) by wholesale failures to adjust litigation strategies and techniques to address the characteristics of ESI. Rather than making friends with this new reality, lawyers have treated e-discovery as an alien force, a new litigation zombie apocalypse or a horrible metastasizing cancer.
This loathing of e-discovery probably stems from the fact that most lawyers went to law school with a liberal arts degree, and law schools only recently (and still hesitatingly) have begun to teach e-discovery. And even those teaching e-discovery have tended to focus on teaching e-discovery law rather than getting in the trenches with actual ESI. Rather than embracing e-discovery, lawyers typically have attempted to quarantine ESI by having it handled by information technology specialists, litigation support professionals or legal service providers, and in the process e-discovery has become a liability without a genuine benefit. Somehow, the litigation support professionals are supposed to handle the ESI, and the lawyers are supposed to handle the litigation—two ships passing one another silently in the darkness of night. In this environment, e-discovery has become a purely defensive endeavor, measured by minimizing cost, while retained counsel has been directed to “win” the case with other traditional resources. The not-surprising result of such a bifurcation has been poor (and expensive) e-discovery and less-than-optimal litigation results.
The solution to this unproductive dichotomy is obvious: Attorneys need to get to know electronically stored information!
Yes, make ESI your friend. Such a friendship yields bountiful rewards, including reasserting control over your cases and getting better results. Making friends with data will make you a fully armed litigator, rather than a one-armed paperhanger, who is able to manage internal e-discovery effectively, strategically manage the opposition and get the data that best tells the client’s story.
Now that you’re convinced and ready to friend e-discovery, take some time to get to know it better. ESI and e-discovery cannot be understood without e-discovery software. ESI can only be seen on a screen, and to see it on a screen you must have the right software.
Here is the critical point: In-house counsel and retained counsel need to know what happens in processing to make informed, cost-effective decisions at various stages of the litigation process. Processing is not something to be left to technicians, based on a universal standard developed years ago. Processing needs to be thought through in each case, as the right processing for one case is the wrong processing for another. Processing creates the data index, and your searches will only be as good as your index. Processing is not an electronic copying service! Processing decisions have big consequences.
ESI really is your friend. I’ll talk more about this friend, and others you should “friend,” in future columns.