Time to Rethink E-Discovery

You can significantly reduce the expense and risk of e-discovery by demanding a cooperative approach, automating the exclusion of most electronically stored information, using non-waiver orders to reduce the cost of privilege review and restructuring the attorney-review stage.

Cooperation has strategic advantages. It increases predictability and control over the information that is preserved and disclosed. It leads to agreements that influence the pace and extent of discovery. Above all, it substantially reduces risk. Courts urge transparency and demand cooperation. Judicial opinions decry lack of cooperation among the parties, and in some cases failure to cooperate has been deemed sanctionable. Cooperation should be a major goal throughout the discovery process.

Most responsive ESI is of little significance, even if it is privileged. With proper waivers in place, the savings from not undertaking a document-by-document review of that ESI far outweigh any potential negative consequences of producing unimportant, privileged ESI.

Although the last decade has seen a revolution in discovery technology, little progress has been made improving eyes-on review. This is largely attributable to the legal community’s unawareness of the revolution in understanding memory and the science of learning. Research shows that those with substantial knowledge of a topic make decisions quicker and more accurately than those who have little comparable knowledge. Properly educated reviewers assess and code documents faster and more accurately, thus substantially reducing cost and risk.