Is Discovery Being Managed Properly? Introduction

Is Discovery Being Managed Properly? Introduction

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

"Discovery" is not a singular part of the litigation process - it encompasses a number of distinct elements, including document collection, document review, document production, discovery tracking and indexing, privilege review and depositions.  Second only to trial, it is typically the most chaotic and expensive part of the litigation, particularly in a complex litigation, because these elements, which each require specialized planning and strategy, unfold simultaneously, or at least with significant overlap. 

The intricacies involved in keeping track of all the moving parts are often under appreciated, if not completely overlooked.  Such neglect is costly. Attorneys will spend too much time re-reviewing stacks of dense, badly written document requests each time a question about discovery arises.  Attorney teams will have to repeat costly and disruptive visits to the client's facility for document collection because of poor preparation.  Document reviewers too focused on getting documents out the door will fail to capture and record information readily available to them that could be used to save considerable time later in the process.  Produced documents will not be adequately tracked making it more difficult to respond to alleged deficiencies in production.  Responses to offensive discovery will be poorly tracked leading to duplicative requests and undetected failures to respond.  Documents will be inadequately indexed making it time consuming to locate pertinent documents when needed.  Privilege review will too often be done by attorneys insufficiently sensitive to privilege and work product issues resulting in inadvertent disclosure of privileged material.  Witness kits for deposition will be inadequately prepared making it difficult to properly prepare for depositions.  Witnesses will be unevenly prepared for the deposition process resulting in unnecessarily subpar deposition performances.  Lastly, lengthy deposition transcripts will pile up undigested rendering much of the key output of the discovery process inaccessible as a practical matter.

However, by approaching the individual elements in a manner that considers each of their respective characteristics and making planning and strategic decisions concerning discovery flexibly from the outset of the litigation, the discovery process can be made manageable allowing important and necessary information to more readily find its way to the lawyers making day-to-day strategic decisions.  When the discovery process is approached in such a thoughtful and organized manner, the foundation of the entire case is put firmly into place as all of the various elements of discovery become seamless permitting Outside Counsel to focus on legal strategy. 

With a sound management strategy for the discovery process, attorneys will:  

Coordinate interviews of client's employees to minimize time spent onsite, perform those interviews with minimal disruption to the employees' work, and quickly identify and process the documents need to be collected so as to reduce their time spent on site during document collection;

  1. keep a proper records of the onsite document collection to avoid the need for further onsite visits;
  2. review documents in a manner that is both highly efficient with respect to time and highly effective with respect to capturing pertinent document information;
  3. track documents through the collection, review and production processes to ensure the overall process moves forward efficiently;
  4. track responses to discovery requests served on their opponent to ensure that responses to all such requests are received;
  5. prepare document indices that will ensure easy identification and retrieval of pertinent documents;
  6. make well grounded decisions concerning the privilege or work product status of individual documents to ensure that documents immune from discovery are withheld with minimal disputes;
  7. prepare deposition witness kits that provide pertinent documents and information in a well organized manner to facilitate the preparation process;
  8. Prepare witnesses for deposition in a consistent manner to ensure each is well prepared; and
  9. digest deposition transcripts in a meaningful way to ensure that pertinent testimony can be found quickly.

In our next two articles, we will take a closer look at document collection and document review.

The tools needed to effectively manage the discovery process, including document collection, review and production, along with concrete methodologies and tools to address case evaluation, budgeting, the decision to bring suit, whether and when to settle, staffing issues, trial preparation and other facets of the litigation process are provided in Bensen & Myers on Litigation Management.

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