The Need for Discovery Professionals. by David M. Shub, Esq. VP of Discovery Strategy, DiscoverReady LLC

Transcription

1 by David M. Shub, Esq. VP of Discovery Strategy, DiscoverReady LLC 2007, DiscoverReady LLC July 2007

2 D iscovery, though an essential part of the legal process, has increasingly become the bane of existence for many clients and law firms. Recent case law provides numerous examples of matters decided not by the underlying merits, but by missteps in the discovery process. The improper management of the discovery process can have disastrous results, as evidenced by the many cases in which sanctions have been imposed involving the following types of shortcomings: 1. An insufficient (or insufficiently enforced) litigation hold policy, leading to claims of spoliation 1 2. Disorganization in producing responsive documents, resulting in sanctions because of slow productions 2 3. An inadvertent production of a privileged document from within the increasingly vast document universe, revealing a key client confidence. 3 The vast (and ever-increasing) majority of documents are created electronically and stored in some cases unknowingly for indefinite periods. As a result, a tremendous quantity of data and documents must be reviewed for relevance and privilege in preparing a case, complying with government regulations or responding to discovery requests. The quantity of information and the ways in which it is stored present the greatest difficulty for parties and their counsel. To date, there is no easy way to address the problems related to excessive data quantity. This dilemma partly stems from the fact that many clients and their counsel have been slow to realize that successful management of the discovery process requires the skills of dedicated experts. Without this integrated expertise, any of the following is likely to occur: Failure to take advantage of available technologies that can lead to huge gains in efficiency and effectiveness Inability to effectively analyze the client s information storage media or to support any litigation-specific software being used Failure to develop consistent, optimal review methodologies Use of temporary or contract attorneys, who often do not have the skill set or commitment level to achieve optimal results Insufficient audit or oversight of full time or temporary staff s review determinations 2007, DiscoverReady LLC 1 July 2007

3 These inadequacies can raise administrative or client-relationship difficulties, lead to poor information, or even result in sanctions against the client or counsel. 4 Commonly seen negative results include: Lack of insight into timing or budget required to complete discovery efforts in general or document reviews in particular Significant unnecessary overspending (both for attorney review and for electronic evidence vendors) Inconsistent or inaccurate determinations about the responsiveness, relevance, or privileged nature of documents Sanctions ranging from fines to dismissals with prejudice because of failure to preserve relevant documents or to timely comply with production requests in a timely manner 5 Corporate litigation, mergers and compliance can no longer be managed as they have been in the past. Modern practice requires the assistance of a new breed of professional dedicated to the efficient and effective management of the discovery process the Discovery Professional. The Discovery Professional Dedicated Discovery Professionals must have: 1. A mandate to focus primarily on litigation support processes, 2. A legal background to understand the overall environment in which discovery operates, and 3. The technological tools vital to modern discovery practice. Increasingly, law firms are realizing the importance of having one or more dedicated discovery professionals within their firms. Outside of law firms, Discovery Professional organizations are beginning to form. Such organizations are based on the collective specialized skills of individual Discovery Professionals. These organizations develop and implement processes that ensure efficient and effective discovery management. A Discovery Professional organization is not a mere consultancy. To be able to implement discovery management solutions, the organization typically retains individuals with strong project management skills and employs and trains a 2007, DiscoverReady LLC 2 July 2007

4 capable, dedicated staff of legal professionals who have chosen to pursue careers in this practice area. To develop its processes for managing various aspects of discovery, a Discovery Professional organization relies on its skills and experience in three basic areas: Litigation Support, Legal Knowledge and Technology. Litigation Support Processes developed in the litigation support field provide the foundation for a Discovery Professional organization s process-oriented approach. A Discovery Professional organization builds on that foundation, incorporating strict project management and operational excellence. Additionally, litigation support experience provides expertise in a variety of tools and relationships with discovery industry vendors. A Discovery Professional organization applies its operational skills to use those tools and work with vendors to provide an integrated solution. Legal Knowledge Familiarity with legal environment issues such as spoliation, privilege waiver, cost-shifting and limitations on discoverability is vital to a Discovery Professional organization s ability to provide optimal service. It would be far from professional to blindly apply procedures or tools without an understanding of the court rules and case law that define discovery obligations, limitations, and opportunities. This expertise is not a static set of knowledge that can be acquired simply by reading a vendor s publication of court decisions or local rules. The legal climate changes so rapidly that a dedicated resource must be assigned to continually research and analyze new and developing rules and case law adjusting procedures, strategies, and the use of appropriate tools accordingly. In addition to providing the right answers, Discovery Professional organizations need to know the right questions to ask. Do backup tapes need to be preserved if so, what subset of tapes? What is a law firm s obligation to notify the client of a litigation hold obligation and then to oversee adherence? When is it appropriate to request cost shifting? How broad a range of information sources must be considered? What might be required to excuse the inadvertent production of privileged documents? Answers to these and similar questions could have a huge impact on the appropriate response to a discovery request, governing the quantity of documents to be reviewed, the ability to shift costs to the opposing party, and the nature of the review process that should be followed to minimize the likelihood of inadvertent production. Understanding differences in legal environments in 2007, DiscoverReady LLC 3 July 2007

5 different jurisdictions (state v. federal, different states, federal Circuits) is critical when addressing these questions and then setting appropriate procedures and practices. Technology Familiarity with a range of technological tools, as well as the ability to quickly learn and train a team on new technologies, is essential. Most documents are now stored electronically (in a growing array of storage devices) Efficient and effective location, acquisition, processing, and review of such electronic documents requires the use of software tools. Therefore, skill and experience with technology are essential to a Discovery Professional organization s provision of a number of important discovery management services, including: Understanding a party s information storage system to determine from where information may need to be gathered. Understanding the extent of (and the means for effectively enforcing) the required litigation hold Determining the most effective way to acquire electronic documents and data Determining the most effective and efficient ways to process and review both paper and electronic documents Document and data review is the most expensive aspect of the discovery process and not coincidentally, it is also the aspect most ripe for efficiency and effectiveness improvements. Appropriate technology brings drastic savings and accuracy improvements in the review process and throughout the discovery process. A Discovery Professional organization leverages available technology to optimize those benefits. What can a Discovery Professional Organization do? A Discovery Professional organization applies integrated skills and experience to provide a wide range of services to satisfy each matter s discovery needs. Analyzing a discovery request, planning response to a request, implementing any portion of such a plan, producing to opposing counsel and subsequent enhanced review of produced and received documents are all areas where a Discovery Professional organization can assist. For all projects, the Discovery Professional company applies sound practices and procedures to promote the efficiency and effectiveness of discovery services. This demands early strategizing and careful consideration of the technological and legal environment of the matter. The Discovery Professional organization does not simply apply a rote practice in response to each service request, but 2007, DiscoverReady LLC 4 July 2007

6 customizes solutions in each distinct circumstance. Variables most important to the party or counsel are factored in, balancing speed, cost, and accuracy in accordance with the needs of each matter. A major area in which a Discovery Professional organization can improve the quality and enhance efficiency of the discovery process is first-pass document review. Applying its skills, experience, and familiarity with advanced software tools, a Discovery Professional organization can enable high-level legal practitioners to find critical data sooner and with less time and effort, resulting in increased efficiency and reduced client legal fees. Conclusion The practice of corporate law has changed. The ever-increasing growth of the quantity and types of documents and data is overwhelming litigation, compliance and antitrust practices alike. Often, the expense and dangers of discovery are equally important as a case s intrinsic merits. The time has come for a new model of solution provider the Discovery Professional organization an entity that focuses entirely on the discovery process and has the skills and experience necessary to restore sanity and good judgment to the discovery management arena. About DiscoverReady : the first Discovery Professional organization DiscoverReady is a national professional services organization, founded by experienced attorneys who have run successful litigation support companies. We are dedicated exclusively to providing law firms and corporate legal departments with intelligent discovery management solutions and effective data review teams. We offer the experience and skills of attorneys and other discipline specialists who are expert in litigation support, operations, technology, and the law of electronic discovery. We leverage our skills, knowledge, and experience to reduce the expense and increase the speed and accuracy of data and document review. The hallmark of our services is our process-driven approach to every aspect of discovery management. Our carefully developed and constantly improving processes allow DiscoverReady to execute each task better, faster, and more cost effectively. Without them, the review of immense quantities of documents and data brings exorbitant costs and uneven results. 2007, DiscoverReady LLC 5 July 2007

7 David Shub, Esq. is VP of Discovery Strategy for DiscoverReady. He can be contacted at For further general information about DiscoverReady, please visit or ### 1 See, e.g., PML N. Am., LLC v. Hartford Underwriters Ins. Co., 2006 WL (E.D. Mich. Dec. 20, 2006) (default judgment and attorney fees award appropriate where spoliation and physical tampering following failure to comply with orders regarding forensic inspection and copying hard drives); In re Napster, Inc. Copyright Litig., 2006 WL (N.D. Cal. Oct. 25, 2006) (adverse inference where no litigation hold prevented defendant s personnel from routinely deleting s without regard to their relevance to the litigation); In re Lernout & Hauspie Sec. Litig., 222 F.R.D. 29 (D. Mass. 2004) (privilege waived as a result of reviewer error despite claim of s inadvertent production); Computer Assoc. Int l, Inc. v. American Fundware, Inc., 133 F.R.D. 166 (D. Colo. Dec. 6, 1990) (default judgment for failure to halt routine destruction of superseded source code files upon finalization of revisions, after becoming aware of likelihood of litigation); William T. Thompson Co. v. General Nutrition Corp., 593 F. Supp (C.D. Cal. 1984) (default judgment and monetary sanctions for failure to suspend routine document retention policy). 2 See, e.g., Giant Screen Sports LLC v. Sky High Entm t, 2007 WL (N.D. Ill. Feb. 27, 2007) (default judgment and dismissal of counterclaims where, among other things, defendants failed to produce s subject to inspection request); Commissioner of Labor of N.C. v. Ward, 2003 N.C. App. LEXIS 1099 (N.C. Ct. App. June 3, 2003) (default judgment for failure to comply with order to produce); Mariner Health Care Inc. v. PricewaterhouseCoopers, No.02 VS F (St. Ct. Fulton Cty. Ga. filed Aug. 29, 2002) (dismissal with prejudice for ongoing failure to produce requested documents in a timely fashion); American Bankers Ins. Co. v. Caruth, 786 S.W.2d 427 (Tex. App. Dallas 1990) (default judgment for failure to comply with order to produce). 3 See, e.g., Gragg v. Int l Mgmt. Group, 2007 WL (N.D.N.Y. Apr. 5, 2007) (inadvertent production of privileged s constituted limited waiver permitting plaintiff s retention and use during litigation); Hollingsworth v. Time Warner Cable, 812 N.E.2d 976 (Ohio App. June 18, 2004) (inadvertent voluntary production resulted in admissibility of and testimony from sender about contents); In re Lernout & Hauspie Sec. Litig., 222 F.R.D. 29 (D. Mass. 2004) (privilege waived as a result of reviewer error despite claim of s inadvertent production); Ciba-Geigy Corp. v. Sandoz, Ltd., 916 F. Supp. 404 (D.N.J. 1995) (erroneous production due to attorney disorganization did not excuse waiver of privilege with regard to unreviewed documents). 4 See, e.g., Zubulake v. UBS Warburg, 2004 U.S. Dist. LEXIS 13574, 94 Fair Empl. Prac. Cas. (BNA) 1 (S.D.N.Y. July 20, 2004) (Zubulake V) (sanctioning Defendant with an adverse inference for spoliation and warning counsel that it had been put on notice of its obligations to inform clients of their litigation hold obligations and to oversee the implementation of their clients litigation hold policies). 5 See, e.g., cases cited supra notes , DiscoverReady LLC 6 July 2007