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EDiscovery, Lean Manufacturing and Nashville Hot Chicken – Part One

I spend a lot of time in Music City. On a recent trip I stopped by Hattie B’s to try their famous Nashville hot chicken. I placed my order with a guy while he simultaneously jammed to a rock anthem. After hearing my Western Pennsylvania accent, he warned me off of the hottest flavor – “Shut the Cluck Up”. The food came out fast, really hot, and delicious.

The key to great eDiscovery is the same as great Nashville hot chicken: repeatable excellence. Anybody can make a good dinner once. Restaurants like Hattie B’s become local legends by knowing how to deliver a great meal every time. 

One More eDiscovery Talk

I was in Nashville in May to speak at the 75th Judicial Conference of the Sixth Circuit. The theme of several conference break-outs was on ways to improve the eDiscovery experience, reduce cost, and minimize errors. The Conference speakers generally emphasized the need to improve the federal practice with civility and responsible advocacy.

My ESI-focused session consisted of three speakers. The first two speakers reviewed exciting trends and new technologies, highlighting the challenges they present for eDiscovery practitioners. Mobile phones were a hot topic. Another speaker discussed how data that is automatically captured by various systems and devices can show what someone was doing and when. Really interesting stuff.

My topic, on the other hand, was how to manage eDiscovery for the corporate ESI we’re all familiar with – email, loose electronic files like Word documents, etc. The standard stuff. Yawn. We are well over a decade into this eDiscovery journey. Two major revisions to the FRCP and countless eDiscovery CLEs later, I’m going to regale a roomful of judges and seasoned trial lawyers with yet another version of how to fix vanilla eDiscovery. Right.

I decided to spend my time explaining why I think that educating the legal industry about eDiscovery best practices is never going to make eDiscovery outcomes good enough. To understand why eDiscovery remains broken after roomfuls of experts have spent 12 years talking about it, let me tell you about repainting my office at home.

Try It – You May Not Like It

A few years ago when I was traveling, I got a phone call from my wife. “I hate your office. That color is awful. When you come in the front door, it makes a terrible impression.”

“Okay, what color do you want to paint it?”

I am going to be honest. I really don’t remember this next part of the phone call, but my wife assures me I agreed to have the office painted a “gorgeous deep brown.”

When I got home from my trip, I walked into the front door and there was my office: a resplendent gold. I don’t really do resplendent gold. Long story short, my office is now a mutually agreeable green, and I’ve learned not to make paint selections over the phone.

Slow Down to Hurry Up

All too often this is exactly how eDiscovery gets off track. There’s a phone call between the parties that outlines general expectations – or no phone call at all. Maybe the parties agree to a general stipulation, or just agree to not talk about it. Later, usually a lot later, the clients and key lawyers dive into the tens or hundreds of thousands of documents produced by both sides and the arguments start. But, of course, by that time the work and cost has already been incurred, and both parties have to defend their decisions.

This is just like my office color. If the knowledgeable people wait until the work is done to engage, they are unlikely to be satisfied with the results. And, if all that work has already been done, you may end up having to do all the work twice – or at least having some heated and expensive discussions about it. Naturally, this responsibility to meaningfully engage, in good faith, falls to both the requesting and producing parties (this includes the clients and their lawyers), as both share the responsibility to reach the end goal.

The key to great eDiscovery is to get it right from the beginning. Every case is different and requires that lawyers approach it as responsible advocates. But, be that as it may, properly designed and executed eDiscovery should lead to meaningful documents being produced that shed light on the story. That requires informed engagement on the front end and consistent execution of a repeatable process. Imagine if all eDiscovery projects started with a meaningful dialogue about the actual data, if informed agreements were worked out before productions are made, and if production issues were identified and resolved before the documents are produced.

When you eat at Hattie B’s, you just don’t see customers sending their meals back to the kitchen to be redone. In my upcoming blogs, reprising my talk at the Judiciary Conference, I am going to discuss how we get those same excellent results with eDiscovery. EDiscovery well-executed leads to far more than just lower cost and fewer disputes. The promise of better eDiscovery is far-reaching because it unlocks the facts that lead to better legal outcomes.

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.