June 01, 2018 Feature

A Guide to Remedying Document Discovery Mishaps

You can do many things to prevent mistakes that result in discovery problems.

David Kessler, Andrea D’Ambra, and Susana Medeiros | The authors are with Norton Rose Fulbright, New York City.

Download a printable PDF of this article.

Of all the litigation mistakes that can happen, the one that may feel the most inevitable is an error in document discovery. There are many reasons for this feeling of dread, some practical and some psychological. First, discovery is hard to avoid; while many cases settle and trial can be avoided, some amount of discovery happens in most cases. With more opportunities to conduct discovery, there are more opportunities for it to go awry. Second, few litigators go to law school with dreams of conducting discovery, and so it’s often not given the attention it deserves and is pushed to more junior lawyers. This is a self-inflicted wound; document discovery can consume more than 50–70 percent of the overall litigation budget and is necessary to understand and develop your and your opponent’s facts of the case. Third, in the information age, not only has the volume of documents exploded, but the technology behind our client’s information and the tools available to conduct discovery have become more complex and sophisticated. Technophobic counsel are either avoiding the problem by burying their heads in the sand or not educating themselves to take advantage of the technology. In either case, this can lead to more errors.

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