Improve justice by rethinking discovery
Approaching discovery as one of “documents” prevents lawyers from realizing digital technology’s full potential to reduce litigation costs. We need to reframe our document discovery practice as a data discovery practice.
Consider how most modern businesses store information. We:
- exchange emails and attachments;
- converse by messaging services;
- create digital documents before we make physical ones, if we make them at all; and
- work with databases – accounting, marketing, operations, sales.
Nevertheless, how often have we seen these cringe-worthy deliveries from opposing counsel:
- scanned, or physical, copies of emails that a party has printed from their email client;
- documents printed from the native files stored on a client’s hard drive;
- pages of difficult-to-read screenshots from a client’s phone from messaging services; and
- boxes of receipts, invoices, purchase orders, and other documents generated from a business accounting system.
Instead of accepting those deliveries, everyone would save significant time, expense, and headache by taking these steps instead:
- collect the relevant .pst or .mbox file from the relevant hard drives or servers, not individual emails;
- mirror the hard drive or relevant server folders;
- use apps that will copy text messages and other social messaging streams and conversations;
- create a backup of the accounting database and then filter for the relevant data set; and
- create and send tables of data rather than sending printed reports.
Collecting data, rather than documents, allows counsel to realize the efficiencies this enables: faster early case assessment; more thorough curation of documents for privilege or irrelevancy; and more efficient exchange of structured information.
Further, reframing these collection practices as ones in which we collect data rather than documents enables further benefits when counsel can cooperate, for example:
- agreeing with opposing counsel to exchange information in native format eliminates or reduces the expense of processing and exchanging data and documents;
- negotiating an agreement to waive photocopying and scanning costs in discovery if both parties are already working digitally, which reduces disbursement expenses for clients; and
- using interrogatories to elicit structured data from the opposing party BEFORE examinations streamlines examination processes.
Any structured list lends itself to a database rather than a review of records. Rather than relying, as a first request, on a review of a batch of documents to obtain structured data, that information can be better collected by having the party export a text table from their database, such as:
- lists of meetings between individuals;
- lists of phone calls (printed from the reports that telephony providers enable customers to download);
- customer or supplier lists; and
- payables or receivables records.
Some formal barriers inhibit these solutions. Supreme Court Rules refer to “Discovery of Documents.” Interrogatories are no longer as of right and are infrequently used. Cost and indemnity rules assume physical document copying and delivery. Future deliberations of our profession to reform the Rules should consider these issues. Meanwhile, lawyers can mitigate the difficulties these Rules create through cooperation and civility.
Reframing discovery as an exchange of data rather than documents improves our ability to practice and increases access to justice by reducing significant waste in our justice system. Unlike other reform initiatives, these changes are fully within our control.
Chilwin Cheng is founder and managing partner of Ascendion Law, a commercial, criminal, and regulatory litigation boutique.