Litigation is a complex and costly process. Motions practice, discovery and trial comprise an intricate dance, but it is surprising that the discovery phase of litigation frequently ends up being the most complicated and expensive part of the process. It often steals the show. Discovery—and e-discovery in particular—has a number of moving parts, but from a 10,000-foot view it should be fairly straightforward. Discovery is about fact-gathering in the form of interrogatories, document exchange and depositions.
Document exchange, however, ends up being much more than just gathering and sorting through documents in order to identify those that are responsive and not privileged. In fact, it ends up being unnecessarily complicated. The mechanics of document exchange, oddly, are not the most complicated part of the process. Managing time, money and expectations throughout document exchange are the real tricks in the process.
What if we were able to better manage time, money and expectations? Once those concerns are eliminated (particularly cost), the discovery phase of litigation will no longer steal the show, and we can make litigation a much more predictable process.
Managing Time
Discovery (and document exchange in particular) is most intensive in the first six months of litigation. During this time decisions about custodians, data sets and review are being formed. Much of this time is spent figuring out how to minimize the number of custodians, reduce the overall data sets and minimize the number of documents that need to be reviewed. Why? Because historically, the cost of review was directly proportional to the size of the review . . . and the size of review was a result of the number of documents . . . and the number of documents was a result of the number of custodians. With earlier technology, controlling document sizes and custodian counts saved money. But trying to engineer the most effective size of review consumes a great deal of time.
The less we try to engineer the size of the review and focus on simply getting started with the review at hand, the more time we will save. And now a number of new technologies (discussed below) greatly minimize the time spent on the review process and allow for more effective discovery.
Managing Cost
Document review has long been a costly process. In the past, teams of attorneys (hundreds at times) would pour over documents to determine relevancy and privilege. In that context, it was obviously important to reduce the number of documents to be reviewed in order to reduce attorney costs. As a result, a tremendous amount of technology has been used to reduce data sizes and increase the speed of review. But in the past, all of this data-reduction technology came at a cost, which ended up repeating the negative cycle of increased costs.
Modern e-discovery software no longer needs to repeat that cycle—and here’s why. There are many service providers that will help take all of your custodians’ data, across disparate sources, and immediately reduce data sets by removing explicitly nonresponsive data. This can be accomplished through deduplication and noise-reduction technology that can remove all nonrelevant data at the time of ingestion.
And the cost? With the proper negotiation, this process can be accomplished at a cost less than the fees associated with paying counsel to discuss the best way to minimize custodians and overall data size. In other words, reducing the set of data from a veritable mountain down to a pile of potentially relevant documents now can be accomplished at a wash.
That pile of information still needs to be reviewed, however, and even with substantial reduction in size there still potentially will be hundreds of thousands of documents to review. This is where further technology comes into the picture. Technology-assisted review (TAR, aka “predictive coding”) can enable a small team of attorneys to review the remaining pile of documents in a matter of weeks, not months. And while it used to cost a substantial fee to use the technology, in today’s e-discovery landscape TAR can be applied at minimal-to-no additional cost beyond the cost of hosting the data. The result is a streamlined document review process that enables litigators to collect more data while expending less time and money to review the data at hand. All you need to do is find technology providers that will accept the challenge and provide the technology at a lower cost.
Managing Expectations
This new discovery workflow will free up a tremendous amount of time spent managing expectations. No longer will it be necessary to determine priority custodians and the most relevant data sources. In the past, much energy was expended managing those two aspects of discovery alone. Today, you simply need to focus on the merits of the litigation and use the technology to work through the data at play in the matter.
With the introduction of such technologies, however, there are new expectations to manage. For example, it is important to make sure that all data relevant to a matter is being collected and that the right TAR process is being followed. But concerns about time and cost will no longer lead the conversation.
Conclusion
Discovery, with its extreme costs and extended timelines, used to steal the show in litigation. Using modern technologies, however, we can move the focus from managing data sizes and document counts to making sure we are concerned with the merits of the case, efficacy of motion practice and the strategy of the overall review.
Let the technology do the heavy lifting. Technology will not resolve every issue that we have in litigation—and new issues may arise—but overall there are enormous economies of scale to gain by applying the right technology. Thankfully, the industry is maturing at a rapid rate, and service providers are rising to meet the challenge to help litigators focus less on time, money and expectations—and more on the case itself.
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