The party receiving discovery requests in litigation has the job of trying to understand the locations of potentially responsive data and documents; determining the identity of key custodians; and determining the most efficient and cost effective method for collection.
The requesting party has as complicated job. For discovery requests to make sense and be more than a game of blind man’s bluff, the requesting party must understand the opposing party’s methods of retaining data and documents; who the key custodians are likely to be; and the best form in which to receive the discovery, given the limitations of the producing party.
Today, neither party can afford to sit back and wait to receive the discovery requests or responses from an adverse party. Discovery ought to be a mutual participation sport in today’s litigation and by the conclusion of the meet & greet conference that cooperation should be evident. In no particular order all parties in a discovery project should understand:
- The identities and geographic locations of all potential key custodians.
- The identities and geographic location of all custodians who may have documents/data, but are minor players.
- The basic construct of the computer systems/servers and the tenets for the flow of information.
- Is the collection being done on a custodial basis or more globally across databases?
- Will collections be done by custodian self-collection? What is being done to preserve metadata?
- What has the procedure been for employee BYOD (bring your own device) and data removal from company locations?
- Who is making relevance determinations? Are these made at the collection or the culling stage?
- What are reasonable date limitations on the data/documents?
- Precise issues for email collection. How can the world of emails be narrowed to core custodians, to limit the production to only the necessary?
If you are the party propounding discovery, what will be the response to many of these requests?
A variation on: “Attorney-client, work-product privilege. These are information and decisions made by counsel and their client and are clearly protected”.
Or, the example I love is: “if we were talking about conversations I have with my client concerning which filing cabinets to go to in order produce documents, the adverse party would have no right to know any part of that process”.
It is not 1985, fewer and fewer filing cabinets exist and working together is no longer a bad thing for anyone’s client. The discovery process must make sense and be economical for both parties.
We need to employ cooperative and mutual participation methods in today’s discovery process. We should be flexible enough to provide a variety of walls between the parties in the discovery process: Transparent, translucent and opaque.
One area is the scope of the collection project. If the requesting party possesses a valid argument for a broader range of custodian collection than the producing party is willing to include, the producing party may find themselves in a “do over” that may cost more time and money than it would have originally. Emails with header metadata allows for threading, which will lead to key and outlier custodians. The custodians most likely to possess pertinent documents are ultimately a discoverable group of people in terms of knowledge and a review of a reasonable production of documents is certain to disclose their identities. So, where is the good faith basis for a disagreement?
During the meet & greet conference under Rule 26, all the parties should cooperate at least to the extent of the above. If not, possibly judges should be more inclined toward suggesting discovery masters to oversee and assure the balance in the discovery process.
If you are dealing with an adversary trapped in the 1980’s of litigation:
- Be prepared to educate the judge.
- Be prepared to defend a more expansive custodial collection.
- Be prepared to defend the best collection and culling processes.
- Be prepared to defend the need for collaboration; particularly when employing techniques, such as predictive coding.
- Be prepared to present the court with well documented, reasonable attempts at collaboration and cooperation.
Above all, remember that someone else may have a better, more efficient way for producing the data or documents reasonably discoverable and work together.