Discovery in Commercial Cases

By Daryl Williams

Discovery in commercial cases, which is all I do, has always been a problem. Before computers and electronically stored information, ESI in lawyer-speak, the issue was being taken to a warehouse full of closed files where you could spend days and weeks looking through banker’s boxes, the producing party saying, “The documents are in there somewhere and the burden and expense for you to find them is the same or less than the expense of us finding them.”

ESI has not made this easier; indeed, the discovery burden is greater because of the volume and complexity associated with looking at the electronic documents and the potential for sanctions if you do not preserve ESI. We handle this internally by getting images of our own client’s computers, which is not very expensive, so that we cannot be accused of not having the ESI if a discovery dispute arises. We have the snapshot. We can then process our client’s records using an internal program that de-dupes and deNISTs the client files; deNISTing involves identification of standard files, like program files, that have nothing to do with data. We can, then, pare the data files down to something manageable with statistical analysis of who is involved in email chains, document revisions, etc. We save the client tens-of-thousands of dollars doing this in-house rather than sending it out to a vendor.

Eventually, though, someone has to put eyes on the images, and the client’s input is essential so you are not engaged in a rock-turning exercise. The client needs to direct the lawyer to the rocks covering the worms needed to go fishing—go to trial. Otherwise, you are turning over rocks in the field of discovery with no more of a plan than turning over every rock in the field to find every worm. The client can give guidance, like describing the wet side of the field where the worms are. It is very expensive to just turn over every rock. The trial lawyer needs to feel comfortable knowing he has enough worms in his can to go fishing even though he has not turned over every rock. Too many lawyers spend all their time rock turning without going to trial. The object is going to trial, i.e. fishing with enough bait to catch your fish.

I also think you need to be careful about spending to much time looking at your client’s or the other side’s computer. We get images of the other side’s computers, of course, and do our own internal de-duplication and de-NISTing and paring, but the client usually knows where to look for worms on its own computer and the other side’s computer. For example, just looking at a particular date range can be very helpful and limits the rock-turning time. Likewise, a subpoena to a third party can turn up a document not produced by the other side, resulting in a narrowly targeted review of the computer if the document is important enough. Is that document important enough?

Many firms tend to put baby lawyers into the field of discovery where they are engaged in prolix rock-turning. The big client being represented by the big firm is slow to realize that the work can be done more efficiently, mistaking the size of the firm and the number of lawyers engaged in rock turning for the quality of representation. Computers make a small firm with expertise equal to the big firm with manpower; after all, it is just one lawyer who stands up and talks in the courtroom.