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EDD SHOWCASE: Call to Disarm. Costs in early case assessment...
October 21, 2009
Early case assessment makes a lot of sense in any dispute situation. Do you have a winner? What is the right forum? Will the costs outweigh the benefits? Is there really a need (business or personal) to pursue the dispute?
It\'s time we leverage the fruits of early case assessment â€" an internal exercise geared toward strategy and risk â€" toward early case resolution.
Although there has been much progress to address the time and costs of electronic data discovery, especial with the adoption of the revisions to the Federal Rules of Civil Procedure, litigation today remains too expensive and lengthy.
Lawyers can no longer plead ignorance about EDD technology, but the technology itself has become nuanced and sophisticated. And it isn\'t inexpensive. Without a smart, efficient, prudent approach, the merit of a case can easily be overshadowed by discovery costs and complexity.
DISCOVERY ABUSE
The party with less discoverable electronic evidence has a potent weapon against its adversary. An opposing party without massive computer records has no incentive to be reasonable. Searches such as, \"Just look for these 500 words in all of your computers\" are in fact, disastrously difficult and expensive.
The potential for abuse goes to both the tendency of requesting parties to ask for more than they need, as well as producing parties\' ignorance of their own systems and underlying data â€" and difficulties in disposing of electronic data in accordance with retention policies.
Should cases turn on looking for that needle in every haystack until you are out of energy or something pops up that produces the \"gotcha\" moment for the other side?
Must producing parties be overwhelmed â€" not just with the amount of potentially discoverable material, but by the myriad format, technology, access, and media challenges in identifying, preserving, collecting, reviewing, and producing electronically stored information? Should businesses be afraid to adopt new technologies or retire old ones for fear of the discovery challenges they will create?
DEVELOPING AN APPROACH
1. People communicate in patterns, according to relationships. In a litigated dispute, parties subject to the FRCP are now required, under Rule 26(a-f), to conduct a meet and confer conference â€" where parties provide the data sources related to the materials to be disclosed, the scope of the disclosure (e.g., particular persons and date ranges, keyword terms), the form of production, and the time frame.
2. Judges are reluctant to interfere with the discovery process that typically occurs between litigants. Nonetheless, judges can extend the concept of a Rule 26(f) conference to include the producing party\'s use of early case assessment technologies to help determine relevant subject matter to be produced, without the burden of an exhaustive, all-inclusive legal hold and search process. The party would be required to provide a plan that demonstrates how the ECA tools searched the reasonable and foreseeable data sources and would be likely to produce reliable, repeatable results.
3. Based on this framework, the court could mandate that any materials beyond the plan presented would be precluded from discovery and be \"inaccessible\" for the purpose of the litigation, subject to a special finding.
4. The court may rely on the use of a special master in complex litigation to confirm that the parties have met obligations for due diligence.
LEGAL HOLD
Based on its litigation readiness plan and records retention program, the party preparing its early case resolution plan would first issue a legal hold to the most likely people involved with the matter, and to the IT department for the computer systems most directly involved in the dispute.
It would then produce records retention guidelines to establish what it anticipated would be kept in its systems. An initial search plan would be prepared for the \"most likely\" category of systems, including e-mail, with most likely concepts and search terms identified.
Using early case assessment tools, key documents would be identified, along with authors and recipients. An initial set of \"most likely\" systems, along with the key documents, would be processed with advanced analytics tools. These tools would illustrate (through visual links or maps) the communications relationships between people inside and outside the enterprise to demonstrate that the initial proposal of key witnesses or systems to be searched either did or did not make sense.
Different tools may be needed for different types of records (e.g., e-mail to be processed with a different tool than word processing files), but the goal would be the same: people and systems that did not appear to be related to the key concepts (i.e., were likely to be peripheral to the case) could be excluded from subsequent searches.
The discovery plan would also identify the software proposed for the culling, sampling, deduping, and clustering processes, and how metadata would be treated. Documents that were not exact duplicates according to the hash algorithm could be excluded if they met certain criteria, based on indexing or mapping tables that showed that the documents were part of the same message thread.
Once the plan is approved, documents would be processed for production and de-duping. Only after the culled set was available would counsel get involved to review, tag, and produce to the other side.
If the plan is followed, that\'s it. Anything else is unavailable â€" but probably also irrelevant. The scope of the search is defined at an early stage, and presumably will be much less than a \"search everything\" approach.
For the most part, mysterious client systems will not require expensive exploration unless they are overlooked in the planning process and can be justified as relevant and dispositive.
For the client, this does not presuppose that you have achieved some unachievable state of litigation readiness â€" but that you have records retention and legal hold systems that are reasonable, operational, and tested.
The role of electronic evidence may or may not be important to the case, but the early assessment process will put it back into the context where it belongs.
Yes, the cost of discovery will be a consideration when determining of the value of the case. But it will be proportionate to its importance in a given case, not the determining factor just based on the volume of material to be searched.
This may not be perfect justice, but it gets closer to a just result.
New York\'s James Mittenthal is managing director at Baker Robbins & Co., and heads its legal information management practice group. E-mail: jmittenthal@brco.com.
Chicago\'s Theodore Banks is president of Compliance & Competition Consultants, and counsel to Schoeman, Updike, Kaufman & Scharf. He is former chief counsel â€" global compliance at Kraft Foods, and is a member of LTN\'s Editorial Advisory Board. E-mail: tbanks@schoeman.com.
By James Mittenthal & Theodore Banks