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What We've Got Here Is Failure to Communicate
Law Technology News
In e-discovery, the failure to communicate often leads to inaccurate expectations, mistakes, missed deadlines, misunderstanding, message ambiguity, and ultimately sanctions! In fact, a lot of the sanctions and discovery disputes we read about could easily have been avoided if proper communication protocols were in place and followed!
Rarely will the receiver interpret a message exactly as the sender intended; therefore good communication requires the speaker and listener to share a common code. Predictive coding terms recall, precision, accuracy, error margin, richness, confidence interval, etc. are classic examples of why we need to define terms before discovery begins in order to avoid confusion.
Additionally, as the number of people involved increases, the complexity of communications increases because there are more channels or pathways through which people can communicate and more opportunity for mistake. We see this in large discovery projects where clients have staged deliveries, processing, first pass review, and rolling productions all happening at the same time.
Clearly, communication today is faster, which is not always better. The speed in which we can send and receive emails, text messages, etc. often leads to unintentional slip-ups that that can cause all sorts of problems. We need to think defensively about what we communicate and good intentions will not keep careless communication from becoming a smoking gun. In fact, almost everything we say or do can end up as evidence.
Written communications (in all forms) is a challenge since documents create a permanent record (information persistence) that if not drafted carefully can easily be misinterpreted and come back to bite you. In fact, the older the message, the more out of context it becomes.
The goal of effective communication is to successfully and efficiently transfer accurate information that will always remain in context. To that end, accurate communication should be clear, credible, concise, consistent, constructive, and timely. All e-discovery projects should be governed by communication protocols.
Steps to developing a communication protocol in e-discovery:
Good communication during a discovery project will allow you to successfully pass accurate information from one person to another, conduct effective discovery, avoid mistakes and misunderstandings, and maintain accurate group situational awareness throughout the entire discovery process.
San Francisco-based attorney Albert Barsocchini is the discovery counsel and director of strategic consulting at NightOwl Discovery.
This article originally appeared in Law Technology News.