Anna Berman, JD, is a Partner at Kutak Rock
Caroline Hall, JD, is Client Advocacy Manager at DISCO
Construction lawyers: What do your ediscovery nightmares entail? When was the last time you had a case that included defect and delay claims on a multi-structure project, only portions of which were at issue in the case? Maybe the case started with 3 parties, and eventually grew to 10+ parties. To top things off, each party is pointing the finger at each other, trying to shift the blame, so everyone is simultaneously prosecuting and defending in the case.
Unfortunately, many of these nightmares regularly come to life in our industry, creating ediscovery hurdles — actually, make that mountains. Each additional party means more structures at issue, more documents at issue, and more productions to prepare and incoming productions to review. Files are huge, lengthy, and complex. Cases usually turn into a battle of the experts, and the experts have to rely on those huge, lengthy files to formulate their opinions.
So what can an attorney on the case do to improve this monstrous ediscovery process? The job of the attorney on the case is to manage ediscovery and formulate case strategy based on the cost and timing of reviewing documents and pulling in experts. The more efficiently, cost-effectively, and quickly you find the key evidence, the better the results for the client — because, as these cases settle more often than not, being able to support your claims early is crucial to effectuating the best settlement for the client. This is where having a power tool of an ediscovery solution comes into play. Here’s how DISCO soothes nightmares for construction attorneys.
You can view the original file structure
With other ediscovery technologies, the client’s folder structure gets lost in the platform. Everything gets put in one giant folder that you might be able to be organize chronologically (or by relevance or search), but you cannot see the way your client had organized them. This is detrimental for two reasons: (a) They were likely organized very well (for example: you can easily find the daily reports in the daily reports folder). (b) You need to be able to communicate with your client about the documents in the same organizational format they had.
With DISCO, the original file path is available in the platform, so you see exactly how your clients organized the documents.
You can collaborate with experts and your client — in one platform
Your clients are usually in the best position to quickly find key documents and draw them to your attention, as they organized the project file in the first place. With DISCO, you can give your clients access to the documents, collaborate with them, and leverage their institutional knowledge right in the platform, without having to send emails with attachments (or use a separate FTP with security issues).
Experts are crucial in construction cases — and they are often even more expensive than the attorneys. To ensure the expert has all the information they need, attorneys often share all of the parties’ documents. But do those experts have an advanced platform to make their review efficient? They probably do not, and if they did, it would be another expense.
With DISCO, experts can have access to the database and take advantage of the same efficiencies as the attorneys. Experts love DISCO — it is easy for them to use, fast, and helps them find the documents they need quickly. Best of all, with DISCO’s unlimited users, there is no cost to get the experts in the platform. Further, the custom roles feature allows you to hide any attorney work product from them and select and track which portion of the database you want them to have access to.
You can easily identify duplicates and similar documents
With DISCO, not only are documents identified as duplicates upon ingest (which allows you to de-dupe the the entire dataset, including in those instances that you need to de-dupe against the documents your client has already sent you); DISCO also identifies similar documents and allows you to set a custom threshold for acceptable similarity at a document level. You can identify duplicate documents even if produced from different parties with different Bates stamping. With 10+ parties all producing many of the same documents in their project files, this will greatly reduced the volume of documents requiring review.
You can identify key documents and cull the rest with smarter searching
Narrow down the body of documents to only those relevant to the disputed structures thanks to searchable, automatically OCRed documents that load in less than a second — even project files and CAD drawings. Similarly, with DISCO you can run searches (or use filters) to find and cull out documents that are not relevant and don’t require attorney review. And those nightmare PDF renderings of Excel files that are practically useless? If you have DISCO, those would have been a thing of the past — you can search the near-native in the viewer, with cell formulas, hidden columns, and comments included.
DISCO’s platform can do so much more than keyword searches. You can build searches for certain party’s documents, during certain date periods, of a certain document type, that contains certain keywords— even without knowing Boolean terms and connectors and all those fancy search rules.
As a final, easy search step, search visualization allows you to quickly and easily identify the most important custodians, hone in on certain date ranges, see gaps in collections from your client or in the opposing parties’ productions, and identify patterns in the dataset that might never be apparent from reviewing the documents. You can also sort by email domain to quickly eliminate emails that are not relevant to the case (like those from espn.com or iloveyorkies.com).
You can find documents quicker by leveraging DISCO’s AI in your workflow
Even if you only had time to review 1/100th of the dataset before the first mediation or before a deposition, DISCO AI is able to identify which documents are the most important to the case so you can focus your time on those critical documents and not waste your time reviewing the documents that are not important to the case. It does this by learning from your categorization (i.e. “tagging”) of the documents, and bringing those predicted to be most relevant to the case to your attention. This empowers you to go into the early mediation armed with the evidence, with a mediation statement supported by actual documents, and will demonstrate to the other party that you are ready to battle — giving you the upper hand in settlement negotiations.
Most importantly, DISCO is a cost-effective solution
None of the features or capabilities matter if it is not a cost-effective solution for the client. DISCO is cost-effective for construction cases in three key ways:
(1) Efficiency — The speed and the AI save hours and hours of attorney time. Your clients will value the savings — and in legal practice, a substantial portion of business is repeat business. If you show the client efficiency and value, they will want to use you on their next case.
(2) All-inclusive, flat-rate pricing — All of the features, analytics, AI, and unlimited users are included in a flat-rate fee. This also means the pricing is predictable and allows you to accurately budget the costs, set expectations, and case strategy.
(3) Find evidence faster — The biggest value is being able to find the evidence faster so you can effectuate strong settlements for your clients earlier in the dispute. Oftentimes, we may forget about the cost of the time (and time is money for our clients) and emotions clients expend in these cases. Getting to resolution quickly not only saves them attorney and expert fees, but time and stress too.
DISCO has proven to be a game-changer for construction cases, empowering litigators to take control of ediscovery and maximize value to the clients. We can tell you from personal experience that once you’ve used it, you can’t imagine practicing law without it.
Footnotes (sorry, not sorry!)
- There isn’t enough time to go into all the other ways DISCO could make you a better attorney and ediscovery manager (things like remote high-speed upload, auto-generated privilege log, search term reports, and a million other things). However, book a demo with DISCO’s team and Caroline would be happy to jump in and go through them all!
- DISCO’s early case assessment (“ECA”) and step-down pricing make DISCO even more affordable for construction cases. ECA offers discounted rates for the period of time that you are evaluating which portion of the database is irrelevant and can be deleted and which portion needs to be escalated to full review. Step-down pricing is particularly important for construction cases that are often very big and can last for years because it provides discounted pricing when growing databases over time.
Anna Berman is a trial lawyer representing clients in complex business disputes across a variety of industries. She counsels clients from risk management and pre-suit demands through trial and appeal, and is particularly adept at navigating the discovery phase of litigation. A member of the firm’s eDiscovery Practice Group, she is well-versed in document management systems and the latest ESI issues.
Caroline Hall is a recovering construction litigator who now runs the DISCO Advocacy Program. She serves as an evangelist for DISCO’s products and services and works closely with clients to ensure that they achieve the highest levels of success and delight with their technology investments.