Can Document Collection Be Used As An Orderly First Step In Creating A Seamless Discovery Process?

Is Discovery Being Managed Properly?  Document Collection. 
By Eric E. Bensen & Rebecca K. Myers

The sixth in a series of articles about how to reduce litigation costs while getting better results.  The following is adapted from Chapter III.B.2 of Bensen & Myers on Litigation Management.

Outside of trial, discovery is usually, indeed almost invariably, the most expensive part of a litigation.  The biggest part of that expense, and the biggest sources of headaches as well, is “Document Discovery,” the collection, review and production of documents and materials.  Document Discovery is typically the most time consuming part of the discovery process, in part, because the Federal Rules of Civil Procedure permit broad discovery, and in part because very often several, if not numerous, sets of document requests are exchanged amongst the parties with even the most tailored document requests sometimes resulting in the production of enormous volumes of materials. 

Document discovery requests will keep Outside Counsel busy collecting, reviewing and producing responsive materials as well as logging documents withheld from production on the grounds of privilege or work product.  On top of all that, Outside Counsel’s own document discovery requests will require the review and analysis of the materials received form an adversary.  As if shear volume were not enough, there is also a mounting body of case law, statutes, rules, and other guidelines or best practices effecting document production issues, particularly with respect to electronic discovery.  That further complicates the landscape and requires Outside Counsel to apply careful and deliberate processes to document collection, review and production, which oftentimes involve voluminous amounts of material scattered throughout several locations. 

A thorough, but streamlined, approach to document production can go a long way toward reducing these potential problems.  In terms of preparation and planning, an often-overlooked area of discovery is the Document Collection phase.  Document Collection is not generally governed by a statute or court rules, but it is a necessary first step to the document production.  After all, before a single document can be produced in the litigation, it will have to be collected from a client’s files and reviewed by Outside Counsel for responsiveness and privilege. 

Given the fact that most litigations involve an enormous volume of material and that a large litigation can involve the collection and review of millions of pages, both in hard copy and electronic form, it is important to start the collection process early. It is therefore not surprising that Document Collection is deemed by many to be the most chaotic stage of litigation. If well thought out, however, Document Collection can be used as an orderly first step in creating a seamless discovery process.  

All too often, Outside Counsel approaches Document Collection without a well thought out, comprehensive strategy for ensuring that collection will be efficient and complete.  The result is that, all too often, Inhouse Counsel will be asked repeatedly over a prolonged period to send documents to Outside Counsel.  These requests will be driven by Outside Counsel’s realizations from time to time that earlier efforts to collect documents from the client were insufficient, opposing counsel’s complaints about the sufficiency of production, new requests by Opposing Counsel or, in the worst case, an order to compel production from the court.  The frequent and often poorly thought out requests to Inhouse Counsel and, in turn, Inhouse Counsel’s clients, are frustrating, time consuming, expensive and, ultimately, wholly insufficient for the purpose for which they are intended: adequate and timely responses to proper document requests.   

The better approach is for Outside Counsel, as early as practicable in the case, to carefully develop a plan for collecting documents.  Generally, such a plan should incorporate the steps identified here.   

• Outside Counsel will work with Inhouse Counsel or a client designee to identify employees who may have the responsive or helpful documents.
• A litigation team member will schedule interviews with those employees to further identify documents they have, to identify other information they have that may make them a good source for case development and to identify any role they may have played in the events leading to the litigation that may lead them to be deposed or called as a witness.

• Prior to going onsite, the litigation team will decide on a collection procedure and scanning procedure that will be followed on site.

• Prior to the interviews, interviewing attorneys will be provided with an interview form setting forth the questions to be asked with space provided to incorporate answers, which will facilitate the interview. 

• Interviewing attorneys will also be provided with other materials to note the documents collected and to mark where they should be returned.

• During and after the Interview, collecting attorneys will review documents identified by the witness and copy (either by scanning hard copy images or copying electronically stored documents) any of those documents that may be helpful and/or responsive. 

  • The documents will then be organized for review. Supplemental collections, if necessary, will be made in the same manner.
  The tools needed to effectively manage the document collection process along with concrete methodologies and tools to address case evaluation, budgeting, the decision to bring suit, whether and when to settle, staffing issues, document review and production, privilege review, trial preparation and other facets of the litigation process are provided in Bensen & Myers on Litigation Management. 

   

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