Chapter 5 Discovery in the Modern Age Conducting and Resisting E-discovery

• Library: From the Trenches III: Pretrial Strategies for Success (ABA) (2018 Ed.)

Chapter 5 Discovery in the Modern Age Conducting and Resisting E-Discovery J. Michael Showalter

In some ways, computers changed everything. Some people have 20,000 personal photos on their phones and no camera. Virtually any song in your computer can play immediately. Our watches keep track of our heart rates and how many steps we take each day. And Facebook! We can find out what several hundred of our high school classmates did today, yesterday, and (for some) each day for the past ten years.

The amount of information available to us and stored by electronic devices is breathtaking. This may be good news for our social lives, but not necessarily for litigation. When litigation begins—in most cases—all of this information is fair game. And lawyers' heads have been spinning for two decades as they figure out how to deal with this information explosion. The problem of electronically stored data adds significant technical issues to problems lawyers have themselves addressed for generations.

This chapter suggests that, in fact, computers have not changed anything in terms of how cases and, specifically, discovery should be managed. The same skills lawyers have used for decades—combined with a modicum of technological fluency—remain important. The meaningful difference in the process is that it now occurs on spreadsheets and laptops, and not pieces of paper with pens and pencils— and that's a positive development. Although the legal framework for conducting discovery has changed somewhat to account for technology, many paradigms—how to conduct it, and how to think about it—really have not.

While it is possible that some litigators' practices have not been radically altered by e-discovery, even straightforward matters that hinge on whether the traffic light was red or green, can involve electronic data like cameras, e-mails, police reports, vehicle data, or Facebook postings. Technological devices, and not shrewd cross-examination, frequently provide insight into what really happened. Getting these materials requires thinking holistically about your case early enough that the materials still can be preserved, collected, and put to use.

Planning, Consistency, and Transparency

Planning, consistency, and transparency are important in addressing e-discovery issues and are helpful in the same manner as they would be in any other life activity. As an example, you may run marathons. There, preparation matters. If you train, you do well; there are few surprises and no magic days.¹ Likewise, consistency is rewarded. You can run a certain pace for a certain time; if you undershoot, you fail. If you overshoot, you also fail. If you plan and then do what you can always do, you perform well. And, if you are trying to tell someone where you will be when you are running, you need to be able to fairly estimate what you can do, not what you hope that somehow you could do assuming you were 20 pounds lighter and the law of gravity was temporarily suspended.

Discovery (including e-discovery) is no different. Preparation and planning matter.

1. In general, use good information management practices.
2. Once litigation is foreseeable, develop a plan to address foreseeable issues in the litigation and be willing to reasonably discuss it with opposing counsel.
3. Know what you are talking about in terms of technology, or find someone who does.
4. Be proactive, and not reactive.
5. Hope your adversary is also doing one, two, three, and four. If they are not, hope for a good judge: you will need the court's help.

Further, you should consider the same things when conducting discovery that you consider when resisting it.

Most cases start with suggestions. The facts of this case line up this way, and not that way. Our people are in the right. Universally, we frame broad discovery plans seeking to uncover all facts related to a dispute. We are frequently better at shining light in every corner of an adversary's world than at framing a discovery plan narrowly tailored to the needs of a particular case.

Litigators are not accustomed to narrowing their requests. Whether we admit it or not, we prefer that no rock goes unturned. From the outset of a case, we plan cases as if the issues require resolution of truth at a metaphysical level and not through the lens of reasonableness through which people generally guide their lives.

Waste results when the parties fail to remember that litigation is a process to resolve disputes and not an end unto itself. Too many documents are collected, from both sides. Litigation dollars are spent on wild goose chases, acrimony occurs, and positions harden. Courts become involved—generally, but not always, forcing compromises that could have been realized from the outset. The purpose of this chapter is not to halt this process; it is to try to structure a process that can manage risk no matter what your adversary's position might be.

Have Good Information Management Practices

The discovery story should start long before scorched-Earth litigation does. In almost every case, document discovery drives litigation cost. If a client has good information practices, it's far easier to get one's arms around how much litigation should cost and how long one needs to produce necessary documents. Good information management practices reduce the variables that parties need to deal with in litigation.

Often the first dose of reality comes from learning about your client's information practices. While some clients are sophisticated and can manage items in-house with great speed and efficiency, others cannot. Documents are housed in many places: on a network, on phones, in "the Cloud." Every custodian's e-mail inbox has 10,000 messages. Key documents related to the affirmative case are in a country where they may be virtually inaccessible. Attorneys need to factor these challenges into their game plan going forward. Oftentimes, the plan should include disclosing these problems to opposing counsel.

The first step in any litigation relationship should be to understand your client's information management practices and stress the need to have a proactive and sound strategy to manage information, both with respect to the ongoing litigation and beyond. These practices...