The NZ E-Discovery Blog  Facilitating proportionate and efficient e-discovery

That is how our client provided the documents to us

January 30th, 2020

If we are to reduce the time and cost of the discovery process, then it is essential that how to tackle the practical requirements of discovery is considered at an early stage. One of these practical considerations should always be how documents are to be identified and collected from your client.

So often the mistakes in the discovery process occur at the outset, which can lead to unnecessary work and considerable cost later in the matter.

The “that is how our client provided the documents to us” excuse, no longer cuts it !

Over the years I have witnessed many examples of when the collection process essentially must be started again. No one wants this ! No-one will want multiple collection exercises, especially the disruption this will probably cause your client.

How can it quickly go so wrong?

Too often, there is not a conversation with the client about how documents will be provided. Historically the process of collecting information from a client may have simply involved a request to the client to provide all ‘relevant’ information.

In many ways. everyone was much simpler in a paper world, although we are no longer in that world.

Often the fault is not with the client. They are usually searching for and providing the documents in the format that they think is best. Discovery obligations will not normally be part of their normal course of business, so they need guidance of what they need to do.

More up-front work

With today’s proliferation of information, it is important to be smarter in how discovery is approached. This requires more work much earlier in the discovery process.

To start with on all discovery matters, you must address the Discovery Checklist. Part of this is identifying who has documents, together with where those documents are located.

The checklist is a great starting point to guide you through these steps.

Enabling you to be more informed and earlier

Prior to commencing a dialogue with opposing counsel, it is beneficial to be more informed about your client’s information. This information will assist with working through the further practical aspects of the discovery checklist and the scope of discovery.

This will be a significant strategic advantage for you as you prepare for the first case management conference.

Having this dialogue early with your client, you can drive the format of collection. Collecting information in its original native application (e.g. word, excel, outlook), can save considerable cost and complication. Turning documents that already exist in their native electronic application into image format (or worse printing), is adding unnecessary steps to the process.

Again, all it takes is more initial work that will pay significant dividends as the matter proceeds.

Be pro-active with your client

It is now more important to be pro-active with the client, to collect the documents in the most effective manner possible.

Often your client (or probably their IT) may not have the understanding of what is required, or the skill set to carry out such a critical part of the discovery process. This is when you do need to articulate what you are after, finding out what they have, then ultimately how you will get that information.

If this is a conversation that you do not feel comfortable in leading with your client, then get help from an expert to liaise with your client. I know on most matters I work directly with the law firm’s client to ensure we identify and collect the information in the most effective way. This usually involves working through a process (i.e. potentially using the likes of a questionnaire or checklist) so no information slips through the cracks, or only arises later in the exercise.

Additionally, it may be helpful to seek a forensic collection to ensure the information is collected in a forensically sound manner. This can be a great peace of mind knowing your approach can be substantiated if it should ever be called into question.

On your next matter, ensure you turn your mind to the practical requirements of discovery at an early stage. Part of these discussions should be devising a strategy of how you are going to best identify and collect documents from your client.

 

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