In today’s digital world almost all information is generated electronically, but many still rely on traditional paper based discovery methods. This reliance on a paper based approach will only add significant burden and cost to the discovery process.

Traditional practices are becoming unsustainable 

Many traditional practices can lead to avoidable expense. Managing electronic documents in the same way as paper documents will lead to greater inefficiencies and increased costs. For some, all they are doing scanning documents and then manually listing them as they always have. This is missing the true effectiveness of the process and contributing to further burden and cost. 

We all know that paper still plays a part in most legal exercises, but increasingly much of what I come across is the situation where parties are not aware of alternative approaches. In a paper based world the traditional approach was manageable, but now it is increasingly difficult, largely as a result of the escalating volumes and sources of electronic information.

However the majority of paper information that I find lawyers coming across is usually straight off a printer. Usually the information is available electronically, but too often it has at some stage been printed. This doesn’t have to be the way if these documents can be collected in their native format from their client. These days there are only some rear circumstances where a matter is historic that there may only be paper copies of information available.

I have mentioned previously about the importance of managing information electronically, but I still come across firms that explain they only have the information in a paper format. The real issue is that paper documents are all that is supplied by their client. Without knowing a lot of the time, by providing documents in a paper format is causing considerable unnecessary expense for the client and burden for the law firm.

Much of the time this situation is resulting due to the practice that both the law firm and their client have been accustomed to. The law firm asked for documents to be provided, the client provided the documents. If we are to reduce the cost and improve the efficiency of the discovery process then it is more important to have discussions between the law firm and client about what information they have and how that information is to be provided.

More upfront work required

For discovery to be more effective it does require a lot more up front work, especially due to the evolving challenges of that come with managing electronic information. The benefit of this early work will help reduce some of the unnecessary cost and burden of the discovery process.

To achieve greater efficiencies it is important to be more pro-active in the dialogue with the client. This will involve actively seeking to retrieve documents in the most effective manner possible.

E-Discovery Questionnaire

In earlier posts I have identified the benefit of a questionnaire to assist the dialogue between the law firm and their client. This questionnaire can be used to ensure that both the law firm and the client are on the ‘same page’ as far as identifying the most effective method to collect the information.

This understanding can ensure that information is collected electronically, instead of being printed. By doing this it can save considerable time and expense of having to then scan and manually list the documents. If documents are provided as paper (or scanned images), it is difficult to search and review the information as considerable human effort is still required to evaluate paper documents. This is without going into the lack of accuracy of only having the documents in a paper format (or a scanned image), preventing any thorough interrogation of the information.

The questionnaire will also help identify any potential problems. These problems may be important factors in agreeing the scope and reasonableness of the discovery exercise.

Greater court expectations to move away from paper

The courts have a greater expectation that inefficient paper based methods should be moved away from, and technology to be embraced when appropriate.

In my last post about reinforcing the requirements of the discovery checklist, I illustrated some of the steps required on all matters. The checklist establishes a framework that can be applied to all matters. Sure every matter is different and there will often have to be additional steps that will also have to be addressed.

The Discovery Checklist goes into detail and actively encourages parties to reduce some of the unnecessary costs in particular in relation to how information is listed and exchanged –

“to reduce unnecessary costs of listing documents parties are encouraged to:       

a)     Use native electronic versions of documents as much as possible; and

b)     Use the extracted metadata from native electronic documents instead of manually listing documents; and

c)     Convert documents to image format only when it is decided they are to be produced for discovery; and

d)     If document images are to be numbered, only number those images if they are to be produced for discovery.”

These steps can save considerable unnecessary burden and expense of the discovery process.

If eDiscovery is managed effectively (which means embracing the right technology and best methods for the matter), there will be a considerable cost saving compared to more traditional discovery methods.

Thoroughly planning the discovery process at an early stage will significantly increase the efficiency of the process and undoubtedly reduce any lingering reliance on traditional paper based discovery methods