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Calling All Professionals to Passionate eDiscovery – Part Two

As a lawyer, I attend many, many conferences. On my last conference road trip, I was grabbing dinner at the end of the evening and catching up on my basketball news at the hotel restaurant. As I was wrapping up, a few guys came in and we struck up a conversation. Like me, they were in town for the Sixth Circuit Judiciary Conference and we had a conversation which I might characterize as standard conference stuff.

Everything was perfectly “conference standard” until they heard I was going to present on eDiscovery the next morning. All of them had the same reaction: “We hate eDiscovery.” (Thanks, guys. You really know how it pumps me up when I realize everyone in the audience “hates” my topic.)

Of course their comments didn’t come as a complete surprise. This isn’t the first time I’ve spoken to a roomful of attorneys who would rather talk about anything but eDiscovery. As a trial lawyer, I am still surprised when seasoned attorneys, who excel at mastering every detail of complex litigation, view eDiscovery as a nuisance.

I started thinking about conversations I’ve had with other litigators in the past, and realized their dislike of eDiscovery usually comes down to some kind of eDiscovery “gone wrong” story. A case where eDiscovery became a huge distraction. A case that cost their client too much. A “good” case that was compromised because of eDiscovery expense. And, they said, while “proportionality” is a great concept, eDiscovery usually feels entirely “out-of-proportion” in practice.

This really got me thinking. After all these years, why should litigators and judges want to pay attention to eDiscovery? I think we should. But, I would go further. Trial lawyers and litigators should “be passionate” about eDiscovery. This blog explains one reason why I think that’s important.

A basic premise. “Justice must be accessible.” Every lawyer is encouraged by the bar they practice in to do pro bono work to promote access to justice for everyone who needs it. One of my former colleagues, Sheri Fox, puts this into practice every day as her single career focus. Sheri is the Executive Director of Legal Aid of East Tennessee (LAET). Sheri immediately related to the impact that eDiscovery can have on low-income clients. Obviously, while LAET can provide free legal aid, Sheri told me, “we cannot pay for the host of other costs and fees associated with the litigation process, including court reporters, expert witnesses, and, of course, eDiscovery.” The result: “our clients have to forego these important parts of the litigation process or find some way to pay these fees out of their own pockets.”

Access to justice, of course, impacts all litigants equally, regardless of size, sophistication, or funding. For justice to be accessible, openness is an implied prerequisite. The entire discovery process is designed to ensure full disclosure of the facts. State and federal rules are designed to prevent trial surprises so that all the parties have access to the same set of facts.

To be accessible, eDiscovery openness also must be calibrated. Discovery is a planned process to find the salient facts. Calibrated eDiscovery delivers practical and efficient outcomes for the producing party and meaningful documents for the receiving party. (“Calibrated” is just another way of saying “proportional,” but I wanted to make sure we were talking more about litigation practice, rather than about eDiscovery rules and case law.)

We’re all familiar with stories about clients who decided not to pursue solid civil cases due to legal costs, including eDiscovery. EDiscovery costs are often a significant percentage of the overall litigation budget. Uncalibrated eDiscovery leads to costs that are no longer related to the parties’ interest in the case, and increase the chance that a client will forego litigation regardless of the merits. When the price of access to justice is out of line with the likely outcomes, justice is denied.

Rooting out waste. As an extension of these truths, eDiscovery must be managed and properly calibrated. EDiscovery is rarely “perfect”, but it must be well-designed and properly managed to keep its cost in line with the value of the case. To a large extent, the unnecessary expense of eDiscovery results from “waste,” which is often the product of late and superficial engagement with key eDiscovery decisions. EDiscovery “waste” is any activity that does not affect, positively or negatively, the merits of the case. By way of example:

  • Documents that are not related to the substance, but collected and reviewed nonetheless;
  • Excessive requests that call for documents unrelated to the merits, whether in the motion practice they necessitate or production itself; and
  • Errors that require any rework, whether related to data collection, review or otherwise.

EDiscovery waste limits our clients’ access to justice in very real ways. As a bench and bar, we owe it to the litigants (our clients) to relentlessly seek to make eDiscovery more efficient and cost-effective by avoiding waste. If we spend our available dollars in a more targeted manner, we can even get more “openness” from the spend, because they will be tightly focused on the needed facts.

For trial lawyers, efficient eDiscovery enables greater focus on substantive representation. For the bench, efficient eDiscovery translates to fewer bottlenecks and less motion practice. For our clients, efficient eDiscovery translates to lower cost, faster resolution, and better outcomes.

Everyone wins. As members of the bar, we all have a responsibility to promote greater access to justice. To meet that obligation, all litigators must make eDiscovery proficiency as much a part of their skillset as great drafting and oratory skills, client communication, and legal reasoning.

Next week, we are going to shift to discussing “how” to do this. We will start by covering what eDiscovery really is. The nature of eDiscovery will show us where to seek greater efficiency and litigation value, at a significantly lower cost.

If you have any comments or questions, I would love to hear from you. Please feel free to email me at csanko@bakerdonelson.com.

See you next week.