You’re Gonna Need A Bigger Boat: Data Management and E Discovery Strategy

“You’re gonna need a bigger boat.” 

This iconic line was uttered by Chief Brody in the 1975 blockbuster film Jaws when he first saw the massive size of the shark they were trying to catch. At that moment, Brody realized they were in completely over their heads, and the boat they had was not big enough to accomplish their task. While Quint’s Orca fishing boat and his traditional methods were capable of handling previous assignments, they were not going to be enough to take on the enormous shark they were chasing. 

For better or worse, the digital environment we live in has resulted in an explosion in the number of documents and amount of information created and used by companies in their daily operations. A mid-sized company’s internal emails alone can run into the tens of thousands a day, and that is before factoring in reports, meeting minutes, studies, presentations, and other business documents. Adding in external emails and related attachments, you are looking at millions of documents a year. Because of this increased volume of data, companies dealing with potential litigation must adjust accordingly. 

Like Brody, they need a bigger boat. An effective e-discovery strategy can provide companies with a bigger boat capable of handling even the most massive litigation matters.

Reducing Data Volumes

Suppose you are chief counsel for a construction company and receive word that a lawsuit is inevitable based on a recent, years-long project. You issue a litigation hold and realize you are looking at a total of 6,000,000 documents that are possibly relevant to that litigation. 

At one time, to review and then produce what was truly relevant to the litigation without releasing privileged or proprietary information to opposing counsel would have presented a nearly impossible task due to the sheer volume of these documents. However, the growth e-discovery tools and expertise of e-discovery specialists have completely changed the landscape of complex litigation. 

An experienced e-discovery attorney can help with not only reviewing the documents to be produced, but also narrowing down the universe of documents that will need to be reviewed. For example, what were the dates from when your construction was first discussed to when it was completed? It is likely that all documents outside that date range can be excluded from the documents needing review. Who were the key players within your company who worked on the project? If the project was on the East Coast, then there may be no need to review anything from the custodians on the West Coast.

Key Search Terms and E-Discovery Tools

By establishing the who, where, and when that are the actual subject of the litigation, the universe of 6 million documents may now easily have been reduced to a few hundred thousand documents. At this point, your e-discovery attorney can further assist you by helping define the key search terms relevant to the litigation. For example, suppose your East Coast office was working on several different projects during the relevant time period – the Alpha project that is subject of the litigation, but also the Beta, Delta, and Omega projects. Using an e-discovery platform like Relativity, you can run searches and eliminate documents that only refer to the other projects and make no mention of your Project Alpha. If the litigation only involves a certain element of Project Alpha, rather than the entire project, you may be able to further eliminate all those documents that have no relevance to the contested portion of Alpha.

Now, your universe is only 350,000 documents. This is still not a small number by any means but considering e-discovery tools and strategic thinking have removed about 94% of documents from that original 6 million, you realize the matter is manageable after all. However, that is not all that can be done to reduce your world of documents. Your e-discovery attorney can further use tools such as de-duping and email threading to eliminate all the duplicates in your document universe and leave you with only the most inclusive email threads, rather than each and every version of an email thread in a conversation that could have lasted for days or weeks. 

Efficiency and Effective E-Discovery Strategy

Finally, you have much more manageable document universe of 225,000 documents. Next, your e-discovery attorney can create a protocol that will be used to review the documents that have been identified as potentially relevant to the litigation. This protocol should lay out a brief history of the facts giving rise to the litigation, a timeline of the key events, and list the key players involved. 

The protocol can also break down how the documents should be coded. Generally, the following criteria are standard coding fields:

• Responsiveness – Is the document responsive to issues in the litigation? Even though the document universe was narrowed using relevant date and custodian information along with selected key search terms, that does not necessarily mean all those documents will be responsive.
• Confidentiality – what protection should the document be afforded? Typically, the court will allow certain information to be produced with different confidentiality levels to protect the parties pursuant to a protective order. For example, a published article about the project would be in the public domain and likely entitled to no protection, while internal emails discussing pricing could contain proprietary information that, while relevant, may provide a competitor with a business advantage. Such proprietary information could still be produced but would be viewable only by opposing counsel and not by the opposing party.
• Privilege – is the information protected by legal privilege? Can the document be produced with the privileged information redacted or does it need to be withheld entirely?
• Issues – does the document relate to specific, identified issues that are key to the litigation? Defining key, critical issues early in the process can make things easier and more efficient as the litigation progresses.

By working with an e-discovery attorney, the company can create a protocol that will allow responsive documents to be not only identified but also tagged with key issues that can be pulled together when preparing for depositions or determining what documents may be useful as trial exhibits.

Conclusion

The bigger boat effective e-discovery strategy and data management can provide will not eliminate a company’s litigation issues. However, it can make those issues much more manageable and cost-effective to resolve. Who knows, had Quint had a bigger boat with a crew skilled in using more advanced tools and technologies, his fishing trip may have had a much different outcome.

DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.