Better Discovery

Read with interest today a post on Bow-Tie Law, which describes a recent Order with the following points:

The Court ordered the parties to complete the following discovery by October 1, 2009:

1) Defendant’s production of de-duplicated data. The Court required the Defendants to “provide their computer expert and technician used for the de-duplication process to explain and describe this process, including the technique and criteria used by the process, to Plaintiff’s expert.” White, 1-2.

2) A meet and confer between experts on a search protocol for PST’s to find three email messages. White, 2.

3) A search to be performed with the both experts present on the PST data. White, 2.

4) Defendants were to perform an immediate privilege review. White, 2.

5) Non-privileged search results were to be produced to Plaintiff counsel immediately. White, 2.

6) Defense production of the litigation hold notice issued at the beginning of the case. White, 2-3.

This order says more about the inability of counsel to cope than anything else.

In litigation, the higher the stakes, it seems to me, the LESS willing one ought to be to allow an opponent to set the terms of de-duplication.

Handing over the data is always a tricky proposition, but allowing the opponent to do the -duplication means that one has to accept the consequences that:

1) the opponent has all the incentive in the world to sub-optimize queries [and then run different queries internally]

2) quality control on work done by someone else is not possible, if all you see is the outcome.

Allowing the opponent to de-dupe is a strategic error and one that should be explained to the client early on and a decision made as to the value of doing each level of data massage internally.

When you go to a massage therapist, do you tell her not to touch the left side, because she’s already done the identical right side?

I propose an alternative: each party does it’s own de-duping and then create a list of files they believe to be identical. Mark them as such and move on. Failure to mark means inability to complain.

De-duping is not the sort of discovery dispute that should have required command and control from the judge.

With respect to the Order directing the parties to devise a search protocol for 3 email messages,–what is the point of that? All it will do is confirm that, yes, we can consistently find 3 email messages.

This case seems to prove that court orders in e-discovery are just like what happens when two siblings can’t agree on who gets the piece of cake. They take it to Dad, who is tired of the noise, and settles it by eating the cake himself.

Is this good lawyering?

I recently posted this response on the LinkedIn ” University of Michigan Law School Alumni” group, on the question of legal outsourcing:

Question :

What are people’s thoughts on legal outsourcing as a way to cut costs for certain routine legal/paralegal tasks such as deposition summaries, document review, broad legal research? Has anyone used such a service? What about using a company with offshore attorneys, e.g. India, Israel, etc.?

My Answer:

Depends on what you mean by “outsourcing.”

As I think about what Agile has to offer the legal profession, the importance of team collocation has become abundantly clear to me. That doesn’t mean that a team should never be ‘distributed,” but it does suggest that lawyers put their teams together with a more coherent strategy than simply buying low and selling high.

Each case needs to have an assessment, completed transparently with the client, on the question of how to create real value for money given the client’s priorities. The folly of doing this without having the team of doc reviewers in on the planning stage never ceases to amaze me.

Right now, my thought is that document review teams should be brought together for the first few days so that they can gel around the mission and standards required for quality. If they need to go away for a few weeks while the rest of the team executes upon their part of the task, that’s fine. But most firms continue to employ the philosophy that doc reviewers are fungible,– a huge disservice to the client.

Only after an internal rhythm is established should the team be disbanded to work remotely. Self-organization is nearly impossible if individuals are spread throughout the world and standards are impossible without some level of human contact.

Yes, cutting cost is important, but it should never be Job 1. Job 1 should always be giving high value for money, with value defined by the client. The gap between cost and perceived value cannot be fixed by simply moving the whole show down on the y-axis.