E-discovery: E-storytelling delivers happy trial endings

Foster your document reviewers’ creativity, and they’ll help you craft a compelling story to display at trial

Human document review is the most expensive stage of e-discovery, yet it often receives the least attention. Why? The answer, in part, lies in the perpetual quest to find a technology that will solve all our e-discovery problems. I call this the “Press the Button” effect, as I have heard too many judges ask, “What’s so complicated about e-discovery? Just press the right button and the documents pop out.”

The quest for the ultimate e-discovery “killer app” is only one of the reasons that human document review has received scant attention. The more profound reason is that e-discovery is often thought to add nothing to winning the case while potentially giving the opposition ammunition and costing a bundle. In other words, dreaded e-discovery has one goal: damage control.

Document review reveals key plots and subplots, but whether relying on document sets culled from key works or predictive coding, most reviews unfortunately train the reviewers to robotically identify documents responsive to the opposition’s request to produce, rather than seeking out the story elements that tell the real tale. What a mistake! No trial attorney ever won a case by adopting the opposition’s characterizations (unless the opposition was an idiot), yet “traditional,” forced-march document reviews make this exact mistake.

Document review should not be a mechanical process of plunking documents into buckets of “responsive,” “non-responsive” and “maybe responsive,” depending on the whim and fancy of the opposition’s directions. Of course, the document review must identify the requested documents, and we need sampling and the quality control tools to ensure legal defensibility, but all of that is secondary. The principle purpose of review is to recognize and understand the documents that tell your story, not the opposition’s. A cagey document request from the opposition will make sure that your reviewers are only identifying the documents that support the opposition’s story. Don’t let the opposition control your review!

Contributing Author

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William F. Hamilton

William "Bill"Hamilton, a partner at Quarles & Brady LLP, is board certified in business litigation by The Florida Bar. His work includes complex business litigation...

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