Legal teams today confront evolving challenges in discovery. Companies, organizations, and even individuals generate massive amounts of data and records, any one of which could hold the crucial evidence to bring a case together. It’s easy to feel overwhelmed. If you don’t collect and organize enough data during discovery, you might miss something.
But if you tumble down the data rabbit hole, you could spend far more time—and client resources—than is warranted. A 2012 Rand study found that records collection and review consumed nearly three-quarters of litigation expenses. Data has only become more complicated and voluminous since then. By one estimate, the number of emails sent and received worldwide per day will grow 4.6 percent annually, exceeding 250 billion by 2020. The challenge is not insurmountable, though. Having a proper and defensible process in place helps avoid pitfalls. Conducting discovery can be manageable, even easy, if you follow four fundamental steps that set the stage for a consistent and thorough process:
- Identify the facts and recognize missing pieces
- Confirm what you know
- Interview key players
- Compile data for analysis
Proper attention to these fundamentals allows for concise discovery. When you don’t follow the fundamentals, things can go bad quickly. Then, you will wind up hiring experts to fix things. My team and I recently helped in a case where initial collection had already been performed, but we soon learned that there had never been a full exploration into where all the data lived or who may have known where it would be.
This client paid heavily in identification, collection, processing, and review charges as the entire process had to be redone and expedited to meet a looming deadline. In the end, it turned out several data sources had been missed in the first go around. If only they’d followed the process from the start.
Identify the Facts and Recognize Missing Pieces
To conduct a smart discovery, you must first have a broad sense of what you’re looking for. Start by talking to the client and subject experts to develop a solid understanding of the matter at hand. Then try to draft your own statement of the facts. Writing such a document helps outline what you believe to be true and what material facts you already know. It also exposes holes in the story, the missing pieces you hope discovery will fill. If that’s more than one or two items, as it almost always is, generate a list of questions that you can send to witnesses and use to set up a baseline for your request for production.
Confirm What You Know
Once you’ve developed your first round of questions, create a formal interview and question plan. To whom will you speak and what will you ask them? As you identify the diverse members of the witness pool, revise your questions and develop custom lists for specific groups. Creating multiple, independent questionnaires greatly increases valid responses across divisions. It also can help with connecting the who, what, and where. Make sure you are ready to ask witnesses to describe the scope of records that might contain the facts you seek. Just because you know what you’re looking for doesn’t mean you know everywhere that information might be stored. In the not so distant past, one would ask if any records or memos were stored offsite, kept in a briefcase, in an office drawer or in lateral files. These locations still might still exist physically, but they are also paralleled digitally. Offsite is now the cloud, the briefcase is now the laptop, the office drawer is a flash drive, memos are emails and so forth.
Interview Key Witnesses
Key witnesses will confirm where the data lives, how to access it and what sources to exclude from the search. Keep in mind, some of these key people might also need to be called on as 30(b)(6) witnesses. Find out what they know! As you proceed, think about what role they play in their organization. Tailoring individual sets of questions based on roles can result in better responses, reduce the number of witnesses, and hone in on key facts. For example, questions about methods of communication, policies and document storage could be completely different when posed to executives versus those in the IT department. Executives might be able to answer questions about their knowledge and involvement on a topic, with whom communicated, and what documents they saved on a flash drive, desktop or the infamous S: drive. But they probably don’t have a clue about the retention and backup policy for the company and whether data is stored offsite. Compile Data for Analysis Once you’ve documented the facts, interviewed key witnesses, and identified what type of data is available and where it is, it’s time to piece everything together. The result will define the scope of collection, a critical element for proper identification of potentially relevant material and for determining the volume of data. To see why this final step is important, check out In re A&M Florida Properties II. In that case, the plaintiff did not identify all sources of data when a broad search was conducted. Some deleted data were overlooked, and the plaintiff had to repeat many forensic searches. The court turned to the groundbreaking electronic discovery case Zubulake v. UBS for clarity, writing, “Counsel must communicate with the client, identify all sources of relevant information, and ‘become fully familiar with [the] client’s document retention policies, as well as [the] client’s data retention architecture.’” Attorneys and researchers engaged in discovery cannot rely on simple requests for documents. They have an obligation to understand what they learn about the myriad ways data are stored. Starting discovery with a formal process should be second nature. Don’t let changing technology lead you astray. You can always loop in the techie folks when you need to. Together you can establish a repeatable, defensible process for information gathering to avoid discovery overload.