A Litigator’s Pragmatic Approach to Avoiding Discovery Disasters

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Discovery is a messy proposition. When in the throes of bit-to-byte battle, litigators make reasonable and good-faith judgments on preservation triggers, scope evaluation, and the selection of document categorization tools, only to have those decisions analyzed and reevaluated with the precision of adversarial, years-after hindsight by an opponent who will scrutinize processes and convey to the court that they could have done better.

Now consider electronically stored information (ESI) and the problem becomes even more complex. ESI can multiply like a gremlin and disappear like Casper—all at the stroke of a few keys. The nebulous and imprecise characteristics of ESI lay the groundwork for what can develop into litigating about litigation (or litigation about litigating)—a wasteful proposition, but one that has turned into a multibillion-dollar industry of lawyers, consultants, data services companies, and, yes, old-fashioned scanning and copy vendors, all discovering more about discovery.

So you say you’re a litigator and you have “people” who take care of ESI for you—according to the State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion 2015-193, you better have co-counsel or an ESI consultant to act as your Rosetta stone. If you haven’t heard Judge Peck’s “wake-up calls,” we are here to tell you that ESI issues are front and center in litigation. See, e.g., Fischer v. Forrest, No. 14 Civ. 1304 (PAE) (AJP), 2017 U.S. Dist. LEXIS 28102, at *1 (S.D.N.Y. Feb. 28, 2017) (“It is time, once again, to issue a discovery wake-up call to the Bar in this District: the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34.”). It’s 2018 and discovery is litigation. Cases are won (and lost) on data.