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E-discovery can seem strangely divorced from the actual process of preparing a case for trial. Indeed, if e-discovery is seen as nothing more than the process of collecting and searching for relevant documents, then it can only be considered as pre-preparation for a litigator’s real work of building and presenting a case. But this only follows if we adopt this limited view of the e-discovery process. A better definition of e-discovery links evidence gathering and review with the crucial (and often more interesting) process of building a case on a foundation of strong evidence.
Jeff Kerr, Atlanta
E-Discovery Is More Than Document Review
To better understand the perspective of inside counsel on this issue, I spoke with Benjamin Prevost, a senior in-house litigation counsel in Atlanta. Prevost is a tech-savvy litigator who is equally conversant with the nuances of e-discovery and the art of winning cases in court. E-discovery is a major part of Prevost’s practice, and he regularly works with his in-house forensics group to identify relevant documents at the beginning of new cases. Prevost also utilizes e-discovery to obtain important evidence from adversaries in litigation.
According to Prevost, e-discovery is much more than simply collecting documents and marking some of them as relevant. Indeed, Prevost notes that tagging and creating subsets of documents “is half or less of the battle.” The key element is “using those documents to construct a story.”
When e-discovery only involves winnowing a large set of documents down to a smaller set, the litigation team is required to complete the remaining half of the e-discovery process—often with inadequate tools or no tools at all. Make no mistake: Good litigators will perform the work, regardless, but handing them a half-finished project and insufficient tools means they will spend twice as much time. As a result, the trial team might spend more time on the manual, laborious process of reorganizing the case materials than they will on tasks such as using focus groups, honing arguments, brainstorming and constructing themes. Hence, costlier (often much costlier), but less valuable representation when enlisting outside counsel.
Tools for E-Discovery’s Other Half Are Increasingly Available
Fortunately, the marketplace of e-discovery products and services becomes more attuned to this fact every day. Several vendors of traditional document review software have added trial preparation features to their platforms (Relativity’s Fact Manager and Everlaw’s StoryBuilder), and a host of businesses now offer specialized platforms that pick up where e-discovery leaves off (CaseFleet Timelines, FactBox, EverChron and others). We can think of these tools—and the work they facilitate—as the other half of e-discovery.
If we consider e-discovery holistically, it becomes clear that both halves of the e-discovery process are essential for adequate trial preparation. And though only a tiny percentage of cases go to trial these days, all good litigators know that good outcomes are obtained in all cases by preparing them as if they were going to trial. Prevost agrees that “the best approach to any litigation is to treat it as if it is going to trial.”
Obtaining a successful outcome at summary judgment or mediation involves many of the same techniques and types of preparation that are involved in actual trial preparation: constructing a theory of the case that takes account of and builds on all the evidence (good and bad), organizing the case so that the proof for each fact can easily be found and ensuring that each element of the legal claims or defenses is supported by facts that can be proved. As a result, trial preparation is essential for all cases, even for those that counsel expects to settle or to be concluded by motion.
The Benefits of a Holistic View of E-Discovery
The disconnect in document collection and case preparation can be avoided by treating e-discovery holistically and, in particular, by not cutting off e-discovery at relevance determinations. This means ensuring that the toolbox available to the litigation team includes software that can do more than merely apply “tags” to documents.
Instead, the tools available to the team must enable lawyers to map out how each element of the claims or defenses will be satisfied by proving facts by means of specific witnesses and pages or sections of documents. If all a lawyer can say about a document is that it has been tagged as “relevant” or even “relevant to failure to provide notice defense,” then the lawyer will not be able to use the document without additional work.
On the other hand, if the lawyer can see that page 33, paragraph 2 of the document proves that “Mr. X submitted defective notice to Company Y on January 15, 2012”—in addition to all other facts that can be proven with the help of the document—then that document is ready to be used for any purpose, including briefing, mediation or presentation to a fact-finder.
Law firms and general counsel should ensure that tools are available to enable a smooth handoff between the initial review process and the more nuanced process of weaving documents together with claims and facts. A smooth handoff does not require a “god” tool that enables document review, chronology-building and trial presentation to happen in the same interface. It does require that tooling is available for both halves of the e-discovery process: document review and case construction. By treating e-discovery holistically as a process that encompasses both finding documents and using them to win cases, inside counsel and litigation attorneys can work more efficiently and with more confidence.
Jeff Kerr is the CEO and co-founder of CaseFleet. CaseFleet is a case management software that empowers litigators with tools for crafting timelines, legal calendaring, billing and more.
