Article New York Law Journal

Three Strategic Choices in E-Discovery

Electronic discovery gets a bad rap. Most lawyers find it unappetizing, high risk, and unglamorous. This perspective, however, overlooks a key litigation opportunity: developing e-discovery strategy hand in hand with trial strategy. It’s the best approach for achieving solid results for your clients. And it’s best for morale, as well, because once you start to think of e-discovery as a strategic landscape, it’s much more fun. Here are three quick examples of strategic choices to make:

Should you send a preservation letter to the other side? Imagine that you have a new case, and find yourself anxious that the other side will not preserve all the data and documents you will need to win. You consider sending them a letter reminding them that they must preserve that stuff. Good idea?

If you are in the federal system, the rules and case law already provide significant protections. In particular, the FRCP codify sanctions for failure to preserve electronically stored information (ESI) under Rule 37(e). Case law, especially that which post-dates the December 2015 amendments, offers details and guidance about how and when those sanctions are meted out. And, if you are in state court, you might even have a state-law tort of spoliation to lean on if, in the future, it turns out that your adversary did not preserve relevant evidence.

The key question is this: Why are the default protections afforded by existing law not enough for you and your case?

Setting the stage for your answer here should be the goose/gander rule: Whatever you ask the other side to do, you must be ready and willing to do yourself, lest your words be turned back on you. For example, in our experience, few litigants could ever live up to the standard set forth in e-discovery professor and superstar Craig Ball’s famous (infamous?) “Perfect Preservation Letter,” which is truly admirable, but which we would submit goes beyond what is actually required given the emphasis on proportionality in the amended Rule 26. So, if you represent an individual plaintiff with zero e-discovery burden, then copy-paste Mr. Ball’s masterwork and fire away. If you represent anyone else, think twice before touching that one.

Instances where you should indeed consider sending a preservation letter are those where sanctions, if applied after spoliation occurs, cannot make your client happy. For example, in a case alleging theft of trade secrets, pertinent data may be ephemeral or quickly destroyed if counsel on the other side fails to take immediate steps to ensure preservation. In that type of a situation, your case may be lost as the evidence is destroyed—post-hoc fighting over Rule 37 won’t make your client whole. Another case might be one involving unusual types of data that could be overlooked by a routine preservation process (which would be likely to focus on the usual suspects of email, user hard drives, etc.). If you do end up sending a letter, be thoughtful in your correspondence so that you don’t inadvertently set out unattainable preservation standards that could someday come back to bite your client.

How do you pick a review method and what are the consequences of your choice? Next scenario: Your client asks you to recommend a method for document review and there are precisely a bajillion documents in the pool. To start, what are the choices? Roughly, there are two routes you can take: (1) the tried-and-true method of attorney review, which is generally some combination of contract-attorney review and outside counsel review; (2) technology-assisted review (or TAR, as the cool kids say).

Here’s the case for human review: Much has been made in recent years about the superiority of TAR to human review. We respectfully disagree. If you drill down on some of the studies on which those claims are based, the results are modest (finding TAR only “at least as accurate” as manual review) and the methods are questionable (utilizing review teams of volunteer law students, for example). Bottom line: In terms of accuracy (not necessarily speed or cost), we would put one of our attorney review teams ups against any TAR tool, any day.

Human review is an excellent way for the trial team to learn about the details of the case as the review progresses. A well-run review team will meet periodically, with each person giving an overview of their data set and talking about key documents they’ve seen and themes that are emerging. The trial team is required to participate, to be quickly alerted to new information and also to correct course if the review has strayed. Weekly meetings sound expensive, you say? For clients that like to win, they’re worth every penny.

Another reason for choosing attorney review might be that you have a data set that contains types of files that are incompatible with any TAR tool (computer code, CAD files, etc.). Additionally, if you don’t trust the other side to do a good job with TAR, regardless of how much “cooperation and transparency” is going on, angling toward both sides agreeing to attorney review could be a good idea.

Here’s the case for TAR: If you select the right TAR tool, you can have a review completed in record time, with excellent cost efficiencies. The per-document pricing for any TAR tool, compared to attorney review, is tantalizingly attractive, especially for clients who are repeat players in litigation. You should know, however, that there are many different types of TAR tools; they are not all created equally; and selecting the right one is critical (think screw driver v. hammer here). Broadly, there are tools driven completely by algorithms and there are tools that incorporate linguistic modeling.

We’ve found that most sales folks selling TAR tools aren’t sufficiently knowledgeable about the limitations of what they’re hawking. If you ask for a vendor’s data scientist—or maybe their expert in data analysis and information analytics—you’re likely to get someone who can answer the tough questions. You need a very frank evaluation of whether a particular tool is well-suited for your documents. Whether the sales folks will admit it or not, there are certain TAR tools that will simply never, ever work on certain data sets.

If you select one of those, you’ll end up with a senior associate crying in the night, valiantly trying—but failing—to make the system stabilize. Clients need to consider the entire e-discovery spend (outside counsel time + vendor time + per document TAR cost) before being beguiled by the potential cost savings TAR purports to offer.

Then finally, with TAR come increased levels of “cooperation and transparency.” While it is wholly inappropriate for the other side to be involved in making or reviewing your determinations of responsiveness (because of obvious privilege considerations), there is a whole lot of information that you will indeed be required to provide. You will likely have to provide an overview of your TAR process, information about its design and outputs, and quality-control metrics such as recall and precision. If you’re working with a reasonable opposing counsel, this process isn’t so bad. If you’re working with opposing counsel who is new to things and/or prone to gamesmanship, then “cooperation and transparency” can feel a lot more like “drawn and quartered.” Your client will agree, once she sees the bill.

Who should handle discovery disputes that end up before the court? When clients hire counsel, they tend to focus on the person who will be first chair at trial, and rightly so. But additionally, clients should ask a critical series of next questions: Who is the No. 2? Who will be running the case on a day-to-day basis? If there’s an e-discovery dispute, who will handle it and, if necessary, argue it before the court?

Rather than trying to prop up a very experienced lead trial attorney with last-minute knowledge of technical e-discovery issues, consider whether there is a person on the team or at the firm who already has that knowledge as well as the courtroom presence to be persuasive for a judge. Oftentimes, firms will have an e-discovery specialist, but that person have little or no courtroom experience. Conversely, some senior trial attorneys sometimes see e-discovery work as the bush leagues, and don’t know much about it. This is a bad model. Advocacy in e-discovery is a specialized skill; an experienced advocate can address the e-discovery problem as a trustworthy subject matter expert, presenting themselves to the judge as the most reasonable person in the room. They can seize opportunities to condition the judge on key trial themes, helpful client information, and the rightful goals of the litigation. Sending in the wrong person for that hearing can lead to bad rulings and missed opportunities.

Simply put, e-discovery strategy needs to be married to trial strategy from the beginning of the case. Lawyers should rise to the challenge, and clients should demand as much.

Christine Payne is a partner at Kirkland & Ellis, where she focuses on complex commercial litigation and e-discovery strategy. Michelle Six is an attorney at Kirkland & Ellis specializing in e-discovery and international data privacy and discovery issues.