Trying to limit discovery is important, and options like trying to establish a relevant date range and targeting who are the key individuals in the dispute will all help.
However I still find parties trying to limit a discovery order, simply by arguing to the Court that there are so many documents that it will take months to review and potentially cost hundreds of thousands of dollars.
Sound familiar ?
What I often find is that a party may be able to articulate how many documents there are. This is often demonstrated by equating to the Court just how many pages there are and what would this look like if it was ever printed out ! Just how many truckloads of documents?
Also sound familiar ?
Substantiate the discovery costs argument
The ‘just too many documents’ argument alone no longer cuts it. It is important to be able to substantiate these arguments of disproportionality and cost.
Arguing proportionality is not just saying the cost of reviewing the information is too expensive. In some cases the cost of discovery might outweigh the value of obtaining that evidence, although on many occasions the arguments have not been substantiated by looking at all the options possible to retrieve the information required.
The problem is the traditional practices
There is no denying the volume of information that may exist, but the problem in this argument is how the potential cost and time to review the information is explained.
In most cases, the argument uses the explanation of lawyers deploying a linear model whereby, lawyers will be reading every single document. This traditional way of manually reviewing documents is becoming more expensive and time consuming. Yes documents still have to be reviewed by lawyers, but technology can be used more effectively to assist lawyers get to the most important documents more quickly.
In a paper based world, you may have been able to read every document. In most matters today the exponential increase in volumes of electronic information, mean you can no longer read every single document. Legal teams now need to embrace better and smarter ways of finding the most important information.
To achieve this it essential to devise methods that can help remove irrelevant and redundant information so the legal team can focus their energies on reviewing the most critical information. Using the technologies that are available can remove significant volumes of information that are just not relevant to the dispute. Being able to do all off this quickly and cost effectively is the key.
Many law firms that may only have one or two lawyers are using analytical capabilities of technology (including options like Technology Assisted Review) to help them get to the most important information. Not only does this assist them compete with firms that may have more lawyers at their disposal, they are able to meet their discovery obligations quicker and cost effectively.
If you are going to argue that your discovery obligations are too vast, be prepared to substantiate that argument. Any argument will have to ensure you have investigated the most effective options that today’s technologies and methods bring.
Investing more time at the outset of a matter in developing a strategy, will help better prepare you for liaising with the other parties or the Court.
