It’s no secret that most people hate e-discovery. It often entails large price tags with little return to be shown for the money spent, other than being able to certify compliance with discovery obligations. In-house legal departments dread having to report and justify discovery costs internally, knowing it unfairly reinforces perceptions that their department is just a cost center. In turn, outside counsel face pressure to keep costs down while also not making mistakes, which could result in even more costly sanctions for their client, not to mention reputational damage to their firm. But, there are good things about discovery, too. Each of the challenges of discovery presents an opportunity for a skilled party or lawyer: to gain a tactical advantage over other parties, to demonstrate their own value, to better serve their client’s needs. While discovery probably won’t become your favorite part of the job (and there is a reason this is not a top ten list), here are five things to love about it:
1. Get what you need
Of course, the purpose of discovery is for each side to obtain the evidence it needs to prove its case. Yet parties who are overwhelmed by discovery are sometimes so wrapped up in their own compliance efforts that they fail to focus on obtaining what they need from the other side. On the other hand, if you work carefully and cooperatively with the other party, you can rest assured that you will not only receive the documents you need, but you will also be able to find them within the production. Finding the best evidence may be the most important thing you can do for your case.
2. Prove legal team value through bench marking
The costs of discovery go down more smoothly when they don’t seem arbitrary and uncontrollable. You can control costs by developing strategies to reduce data volumes through smart collection, culling and review strategies. But, don’t stop there. You should then establish that you have controlled costs by bench marking your results. This involves estimating costs saved each time you eliminated volume or create efficient workflows. By providing context of what discovery would have cost without your work, you can quantify your own value add to the project. The result is a happier client who likes you.
3. Show the judge you are reasonable
Judges hate e-discovery battles. They dislike them when parties disagree on protocols at the outset of discovery, and they hate them when parties disagree about how discovery should have happened after it has closed. Judges appreciate if you at least try to approach a Rule 26(f) conference with transparency and cooperation, with informed discovery liaisons who can discuss data sources and technical aspects of discovery. Even if the you and the other party disagree, judges want you to be able to represent that you made a valiant effort at your meet-and-confer, and to be able to articulate the areas of disagreement clearly. So, treat discovery discussions as an opportunity to demonstrate to your judge how reasonable you are. Good judge karma has many ways of coming back to you.
4. Determine case merits early
A party’s documents are a window into the merits of its case. Data analytic tools can be used to gain insights so you can make an informed early assessment as to the case value and risks. That information can be invaluable in forming litigation and settlement strategies.
5. Start a better process
Many times, in-house legal organizations understand risks of their company’s lack of litigation readiness, but the company has not prioritized making an investment to address these risks. During actual litigation, in-place processes should be scrutinized carefully, which can illuminate more clearly discovery risks that the company needs to address for all of its litigation. In addition, the cataloging of data sources and transfers of data that often occur during litigation can create opportunities to streamline discovery processes and to delete stale data that is not subject to litigation holds.