E-Discovery

“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.

As the amount of electronically stored information (“ESI”) continues to grow at an exponential rate, basic E-Discovery knowledge becomes increasingly essential for litigators and legal professionals alike across a variety of practice areas. And yet, it does not appear that law schools are keeping up with E-Discovery’s ever-growing consequence. While a handful of law schools do offer standalone E-Discovery courses, it is far from the norm. Mere passing references to E-Discovery in higher education are inadequate to prepare future lawyers for the realities of the legal profession in this digital age.

New technologies are being created and utilized every year. The most significant developments lately are the rise of chatbots - software applications that allow for online chat conversation via text or text-to-speech, without any direct contact with a human operator. Currently, the chatbot garnering the most attention is OpenAI’s ChatGPT program. This article will focus on this technology and how it works either for or against the E-Discovery review process.

An MBA professor of mine used to be fond of saying “data drives decisions.” His point was that the more information you could get, the more informed the decision you could make. In the context of document review, daily reports can be a timely and efficient method of communicating that critical information. The first few days, and even weeks, of any document review project are full of questions and uncertainty. Does the mere mention of a term make the documents responsive? How substantive does the document have to be to be considered “hot”? Am I tagging too many documents as “not responsive”? One way to gauge whether a document review is on the right track is by having the people reviewing the documents submit daily reports describing what they are seeing and how they are coding those documents.

In Part Two of this blog series, I discuss lessons learned and provide best practices for complying with discovery obligations. In Part One of this blog series, we analyzed Burris v. JP Morgan Chase & Co., et al., a case in which the Court dismissed Plaintiff's complaint with prejudice because of Plaintiff’s “extensive misconduct and deception, without any obvious contrition or awareness of the wrongfulness of his conduct” which posed a serious risk any further proceedings would be “plagued” by a similar pattern of discovery abuse and deception that would make “it impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available." As litigants and legal practitioners, we can learn from the Court's decision in Burris and ensure we don't make the same mistakes.

In Part One of this blog series, I discuss a case that makes clear the importance of complying with discovery obligations. The Court concluded that Plaintiff’s “extensive misconduct and deception, without any obvious contrition or awareness of the wrongfulness of his conduct” posed a serious risk any further proceedings would be “plagued” by a similar pattern of discovery abuse and deception that would make “it impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available” and ordered Plaintiff’s complaint dismissed with prejudice. Indeed, although the old adage dictates that to the victor go the spoils, there are no spoils and no victory for one who engages in spoliation.