There are still many lawyers who believe that they are not doing their job if they don’t read every email, document, spreadsheet, video and all other ESI that gets produced during discovery. In fact, the opposite is true. Courts are pushing the idea that you need to use technology to help you get to the most relevant documents in the most efficient manner. Lawyers have a duty of providing competent representation to their client and candor to the court regarding examining relevant material in their case and being responsive to discovery request. How can you perform your client duty without looking at every piece of ESI that exists in your case?
You are performing your duty to client and court if you combine the leveraging of search terms, advanced analytics, filtering tools, time line visualizations, email threading, predictive coding and understanding the true scope of the discovery. In other words, using an eDiscovery platform that contains the tools needed to parse information in an organized and defensible manner. There is no such thing as perfection (you will never find all documents, no matter what methods you use) and the courts don’t expect perfection. What they expect is reasonable, transparent and defensible methods to prove that proper procedures were followed and no one either dropped or hid the ball.
A Recent Case
This approach to litigation is highlighted ina a recent criminal case, United States v. Pomrenke, 2015U.S. Dist. Lexis 165287, *1, in which the government produced over 1.9 million pages of discovery, plus 49 audio recordings, and two videos to the defense.
Defense counsel’s immediate reaction was to request at least a six month continuance. They argued that they had an “ethical obligation to review every document produced by the government to determine its relevance or lack thereof.” They estimated that it would take three lawyers working 24 hours a day more than a year to complete. (Given that estimate one has to wonder why they only asked for a 6 month extension…)
It didn’t matter what they asked for because the judge awarded them only a six week extension. The court did not accept the defenses argument. Judge James P. Jones opined: (at Pomrenke, at *5)
I believe that many of the produced documents can be reviewed very quickly. Counsel for the defendants can use e-discovery software to aid in their review and can enlist the assistance of additional attorneys if necessary. In addition to the three attorneys of record, the defense team also includes an investigator. Moreover, the defendant’s husband is legally trained. Although he is not counsel of record in this case, I previously affirmed an order of the magistrate judge allowing the defendant to disclose the discovery materials to her husband, anticipating that he would assist with trial preparation.
The Court felt that this allowed adequate time for the defense to prepare for trial while still serving the interest of the public and the defendant in having the case handled in a timely manner.
Relevancy review does not require a team to physically review every document. Determining what the “case story” is going to be will focus the document review to find the necessary documents. Determining what the case story is can be accomplished by using technology that:
- Focuses the scope of discovery and review of documents to the key players and/or custodians in the case.
- Early Case Assessment tools such as advanced searches, filtering data on time frames and subject matter will allow effective document culling to reduce what needs to be examined.
- Uses email threading and advanced deduplication tools dramatically reduces the volume of documents that need to be examined by the review team.
- Employs advanced visual analytics of email social networks and individual relationships quickly focuses attention on key information.
- Uses advanced tools such as Predictive Coding which allows the software to “learn” from document review what is relevant and irrelevant.
- Runs faceted searches over documents identified by Predictive Coding as possibly relevant further refines and reduces the documents that actually need to be examined by the team.
- Uses a single integrated eDiscovery platform that allows flexible, not linear analysis so the team can quickly adjust strategy as new information is uncovered.
The newly modified (December 15, 2015) Federal Rules of Civil Procedure Rules which reinforce reasonableness and proportionality in performing discovery work encourage efficiency and efficacy in discovery. One of the strongest ways to do that is to leverage technology offered by intelligent eDiscovery platforms. Document review should no longer take years to perform. In fact, it is unlikely that courts will allow it any more.