Discovery on Discovery

This deck on litigation discovery is from a joint presentation I gave to the America Bar Association with Judge Patrick Hanna, and Diane Quick.

The first question about discovery is WHERE? Regardless of what might turn up in the discovery process, good or bad, just figuring out where it is – the data map – is by itself a big job. Central databases, file cabinets, cloud storage, employee desk drawers, personal computers, smartphones, thumb drives, floppy disks, and on an on.

Once you know WHERE it is, you need to figure out WHAT it is. Is the data responsive to RFPs, RFAs, etc. Is it discoverable, relevant, privileged, and so on. Some of this can be complex and difficult, and other parts can just be overwhelmingly time consuming, even if not too difficult. Some part of the what question can be resolved with software, search terms, and so on.

Ultimately, however, it is necessary to involve people in the review process. This is where the costs really start to escalate. And this is also where process can be leveraged to achieve better results and reduce the cost of review.

The purpose of all this review is really just to determine whether it can/should be produced to the opponent, used in depositions, and so on.

One of the interesting aspects of discovery is that it is asymmetrical. It is one of the few areas of litigation that might tend to favor a “David” against a “Goliath.” This is because the larger party will generally have vastly more information to look through in response to discovery requests. And the risks of non-compliance with discovery requests are far greater for the larger party than the smaller party. Given that discovery is one of the few ways that a smaller party can arguably gain a strategic/tactical advantage, we shouldn’t be surprised at the ongoing importance of discovery in litigation.