Author: Jeff Dreiling
“Why do we have to deal with all of these emails?”
To some, this question may seem silly and outdated. All too often in today’s legal world, it is still asked in a whisper or behind closed doors. We can evaluate this question from a number of angles, but I prefer to look at the emotion behind it: fear.
Whether it is fear of change, fear of the unknown or fear of looking uneducated, many litigators are still fearful of Electronically Stored Information (also known as ESI) in the discovery process.
Having survived over 17 years in this industry, I have come to accept that the closest emotion to fear on the spectrum is anger. When we first engage with a client dealing with an eDiscovery “problem” we often sense that anger and work to identify and address the underlying fear.
Challenges, Demands and Changes to the FRCP
Given the realities that are created when the legal and electronic worlds collide, it’s understandable why they may be scared or angry. A few of the challenges that lead to this emotional reaction are:
- Quickly emerging technology
- Ever changing rules and regulations
- Upset clients over growing and hard to understand costs
- Exponential growth of data volumes
- Inconsistent application of rules across jurisdictions and judges
- Fear tactics used by eDiscovery companies over the years
- Legal opinions that seemingly change the rules of engagement on a daily basis
Additionally, today’s litigators are bombarded with the same demands that have always made the job a challenge:
- Demanding and sometimes unrealistic clients
- Internal or external budgetary constraints
- Evolving tort reform in many states (including Missouri)
- Changes in government regulation
- Keeping existing clients happy and attracting new ones
- Facing high pressure situations and constant deadlines
- Finding some sort of work/life balance
These challenges aren’t new, but when you add to them the changes to the Federal Rules of Civil Procedure (FRCP) governing ESI that initially occurred in 2006 with further amendments to those rules in 2015, you can begin to understand why the question is asked.
Before 2006, and in some non-Federal jurisdictions still to this day, the culture of “I won’t ask for yours if you don’t ask for mine” was more alive than anyone cares to admit.
Ignoring the Emails Isn’t An Option
Litigators simply have enough on their legal plates and they didn’t have the time or the desire to become “IT nerds” as well. This creates a significant problem as Business Insider estimates that over 90% of all content created in 2012 never made it to paper. This means that if you “ignore” the ESI in a case, you are potentially litigating it based on only 10% of the information.
One litigator recently put it to us like this, “I miss the days where I could walk into the courtroom with a red rope of key documents that I knew I could win my case with.”
The job of internal litigation support departments and outside litigation consultants alike is to help our clients do just that. By leveraging knowledge of the rules and utilizing the latest proven technologies, it is still possible to sort through the mountains of ESI and still litigate a case based on a red rope of documents. The process to get there has just changed.
The Super Six: Evaluating Where You Are
The more quickly we can identify the fear, the more quickly we can reach a conclusion. On any project, we attempt to gather the following information as quickly as possible. We like to call them the Super Six:
- Tell me about the case
- Where are you in the case currently?
- What is your desired/required output?
- What type of budget do you have for this portion?
- How many people do you have available to assist?
- How much time do you have?
The Super Six questions allow us to begin mapping out a strategy to assist our clients. Based on the answers we can make decisions on what types of services will be needed and therefore start to build our internal case team to assist. More importantly, gaining answers to the Super Six lets us know where the fear lies so that it can be addressed.
For example, if the answer to the question, “Where are you in the case currently?” is, “Discovery is almost closed and we haven’t reviewed much of what has been produced to us and we still have 250,000 emails to review from our client before finishing our productions”, we know that we probably don’t need to involve our Data Acquisition team or our ESI Protocol Consulting specialists.
As we begin to evaluate what steps need to be taken and what technology we will recommend be deployed, questions 4-6 really begin to guide our advice.
Unlimited budget, too many people and all the time in the world don’t usually happen so we attempt to be good stewards of all 3 of those valuable resources. If people and time are more important than budget, we look at utilizing technology assisted review (TAR). If budget is a big problem, but we have a lot of time and the end client has qualified employees to assist in relevancy review, we will dive deep into designing and building a review process that minimizes spend on technology and focuses more on utilizing the assets available (with a validation process to ensure accurate results).
A Litigation Consultant Eases the Fear, Anger, Frustration
The end goal is to assist our clients through the process, educate them along the way and create comfort where there was fear. An attorney who is educated on eDiscovery can more easily explain costs to their client and be better prepared to respond to ESI matters on their next case instead of simply reacting. Plus, they can feel empowered by eDiscovery instead of intimidated by it.
Each project and each client is different, but by designing customized case teams and workflows to each case, no matter the size, we deliver the most education and value for your spend.