Don’t Create Document Review Quagmires

Problems do not improve by not talking about them.

In an employment discrimination case, the Defendants sought production of several exhibits from the Plaintiff.

After stating she would produce them in a few days, the Defendants did not hear back from the Plaintiff despite both formal and informal requests. Mitchell v. Savannah Airport Comm’n, 2018 U.S. Dist. LEXIS 102182, at *1-3 (S.D. Ga. June 19, 2018).

It’s never good when a judge refers to a party going “radio silent.” In Plaintiff’s opposition brief, she claimed she had produced all “reasonably relevant” documents in her possession. The Court stated that message could have been provided to the Defendants “long before” she filed her opposing brief, adding, “[t]hat sort of forthright candor would have enabled defendant to request a privilege log be prepared of all the documents plaintiff believed ought not be produced.” Mitchell, at *2.

The Defendant served supplemental discovery requests to sort out the missing exhibit issue, which the Plaintiff did not answer. The Plaintiff argued that she was in compliance with discovery while admitting she had not responded to supplemental discovery requests. Mitchell, at *2.

The Court described the Plaintiff as being “still bogged down in document review, trudging through the “50,000 documents” that were timely produced by the Defendants. Id. The Plaintiff requested the Court reopen discovery, prompting Judge G.R. Smith to order the following:

Thus ensues her request to reopen discovery so that she has time to fully investigate her own case (e.g., reviewing those documents and deposing a witness), with no mention of defendant’s impaired ability to fully mount a defense and nary a peep about why it took her more than a month after the close of discovery to realize she needed more time. Put simply, time was ticking and plaintiff failed to request more of it to accommodate the apparently Herculean task of reviewing everything defendant produced in response to her requests for discovery. A temporal quagmire, of plaintiff’s own design, is not “good cause” warranting reopening discovery under the Rules. Fed. R. Civ. P. 16(b)(4); see also S.D. Ga. L. R. 26.2.

Mitchell, at *2-3.

The Court granted the Defendant’s motion to compel for the Plaintiff to respond to the unanswered discovery requests and with a privilege log of any documents she believed ought not to be produced. Mitchell, at *3.

Bow Tie Thoughts

One of the biggest dangers to explode costs with unnecessary document review is to set out to read EVERY document in discovery. Treating discovery like it is a frontal assault on a fortified position does nothing but kill irreplaceable time. There are many strategies on how to review a production from an adverse party that can maximize time, so weeks are not lost reviewing every document, one at a time.

Search for What Supports Your Case: Never forget the purpose of document review is to find what supports your claims and defenses. Discovery requests should be drafted to identify information that supports the causes of action in a lawsuit. In a perfect world, the production includes what ESI is responsive to each request. However, since the Rule 34(b)(2)(E)(i) labeling requirement applies to documents and not ESI, it is unlikely producing parties would include such discovery luxuries in a production of data. That means requesting parties need to search the data.

Attorneys can create searches based on their requests for production or allegations of their complaint for their initial searches of produced data. Parties can also use search features of review applications to look for ESI from specific individuals, or email exchanges between custodians, or ESI authored by relevant parties. Data can also be sorted by data range to focus review. Analysis of email Subject lines or file names can also help identify what to information needs to be reviewed.

Predictive Coding to Identify Relevant ESI: There are review applications with predictive coding technology that learn from the document review coding done by attorneys. The predictive coding models created from reviewing a party’s own data can be applied to data from a producing party. The predictive coding model can identify data that is potentially relevant to the case, which is an excellent starting point for reviewing data from an opposing party. While new models might need to be created, this is far more effective than doing a brute force review of data.

There are many other search strategies and technologies, such as data analytics, visualization, clustering, and early case assessment, to name a few. Each has advantages that can help find what supports a party’s claims in a lawsuit. Whatever review application a party is using, they are well served by leveraging the technology to identify what likely supports your case, opposed to reviewing every record like it is in a box of paper.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.