There are two aspects of discovery when thinking about documents: reviewing the documents and reviewing to understand the contents of the documents. When you are the party receiving documents, then your document review efforts are more concerned with understanding those documents. Your job is that of investigator charged with the task of understanding what opposing counsel has delivered to you. Whereas the document reviewer is focused on the responsive, the investigator is trying to separate the outcome determinative, from the merely helpful or the barely responsive. Presumably the documents your strategy will hinge upon is a faint signal submerged in a sea of white-noise.
And this challenge frequently is magnified by opposing counsel’s attempt to confuse and mislead with the dreaded data dump tactic (of course, for those in the know, there is nothing to dread but that is a topic for another post). But because the goals of the receiving party are so distinct from those of the producing party, wouldn’t it make sense that the tools and techniques needed to achieve those goals be different? Oddly, many receiving parties approach the investigation of a production set in the same manner, or worse in a much more primitive manner, as they would if they were producing the documents. Key word searches and linear multi-tier review are poor substitutes for true investigative techniques, and such methods are likely to yield even worse results in the context of an opposing party production analysis. Here are some tips to developing an understanding of your adversary’s production.
Did you get what you requested in the form you requested it?
It is a basic, but critical step: did you receive data in the form you requested? Unfortunately, we see too many lawyers who either fail to set forth a specific form of production in their Requests for Production or, once they receive data, learn it was produced in a manner inconsistent with the form requested. The lawyers who failed to specify a form find themselves in an unenviable position, but those that received it in a form contrary to the form specified have more options. As is so frequently the case, communication is your best ally in the process.
If you asked for data to be produced in native format, and you received TIFF images without any metadata fields, then it is time to stop and talk with opposing counsel. Of course, in my opinion if you aren’t specifying a form of production until you send your Requests, it may be too late to do much about it anyway. This discussion is best had at an in-person meet and confer as opposed to buried in your instructions that accompanied your Requests. Nonetheless, if you didn’t get data in the manner you requested and thus cannot use all of the search and analysis features in your review platform, then it is time to stop the process and force the issue. The majority of time we see this occur, opposing counsel will be reasonable and amend their production in the form requested.
Did you get what you expected to get?
Related to this first point, what does your initial triage of the data suggest you actually received? Did you expect months of email going back for several years, and instead received email with sporadic blocks of time missing from the production set? If so, then the question becomes why, and again, a conversation with opposing counsel is the only way to begin to understand this issue (what some call cooperation, but I think the word communication is more accurate).
Perhaps there was no email sent on the topic at hand for an extended period. Perhaps they failed to collect from all of the necessary custodians. Perhaps there is some other reason. But the reality is some review applications and workflows may not reveal this gap immediately. By visualizing the data you can spot macro- and micro-level trends instantly; thus, enabling the quick and efficient investigation to isolate critical documents. Oftentimes, comparing the data received to your expectations of what should have been in the production set is one of your best investigative techniques. Don’t assume the information is missing because it doesn’t exist – challenge the production, and force your adversary to factually defend the production (or lack of production, as the case may be).
Assuming you have what you need, do you understand the story the data is telling you?
When reviewing an opposing party’s production, the ultimate objective is to uncover the story within the documents. The basic elements of who, what, when and how are all contained within the production set (presumably), and they are waiting for a skilled investigator to uncover the facts. The harsh reality is that not all review platforms are equally suited for rapid fact development and you need to understand your options - and service providers who are married to legacy platforms simply aren’t going to tell you otherwise.
Too frequently, discovery vendors behave as if litigation is only about the document review process. But as a software company with a law firm genesis, we understand that document review is but a moment in time in the life of the litigation matter, and we work to make sure our clients understand the data not just review documents. When you need to prepare for a deposition, get ready for motion practice, or are gearing up for trial, don’t settle for solutions that are designed for reviewing documents using a multi-tier review workflow designed to keep armies of contract attorneys in business. Think about what you need to litigate the matter on the merits, and interrogate the data as rapidly as possible. Find the dots so that you can do what you are best at, connecting the dots.
In other words, begin with the end in mind and start telling better stories.