The Challenges of Communication During Discovery Create Unnecessary Risk

In Discovery, the failure to communicate or the failure to communicate properly often leads to inaccurate expectations, mistakes, missed deadlines, misunderstanding, message ambiguity, and ultimately sanctions! In fact, allot of the sanctions and discovery disputes we read about could easily have been avoided if proper communication protocols were in place and followed!
Rarely will the receiver interpret a message exactly as the sender intended; therefore good communication requires the speaker and listener to share a common code. Predictive coding terms – recall, precision, accuracy, error margin, richness, confidence interval, etc. – are classic examples of why we need to define terms before discovery begins in order to avoid confusion.
Additionally, as the number of people involved increases, the complexity of communications increases because there are more channels or pathways through which people can communicate and more opportunity for mistake.
Communication today is faster which is not always better. The speed in which we can send and receive emails, text messages, etc. often leads to unintentional “slip-ups” that can cause all sorts of problems. We need to think “defensively” about what we communicate and “good intentions” will not keep careless communication from becoming a “smoking gun”. In fact, almost everything we say or do can end up as evidence.
Written communications (in all forms) is a challenge since documents create a permanent record “information persistence”, that if not drafted carefully, can easily be misinterpreted and come back to bite you. In fact, the older the message, the more out of context it becomes.
The goal of effective communication is to successfully and efficiently transfer accurate information that will always remain in context. To that end, accurate communication should be clear, credible, concise, consistent, constructive and timely. All e-discovery projects should be governed by communication protocols.
Steps to developing a communication protocol in eDiscovery:

  • Define your communication requirements.
  • Determine what information is to be communicated – format, content and level of detail.
  • Determine who will receive and produce the information.
  • Determine approved methods /technologies for conveying information.
  • Determine frequency of communication.
  • Determine escalation procedures for resolving issues.
  • Determine procedures for updating the communication management plan.
  • Determine what should be in and what should not be in the communication log.
  • Create a glossary of common terminology that will be used for the project.

When you communicate, you should always:

  • Look interested.
  • Inquire with questions.
  • Stay on target and focused.
  • Test your understanding.
  • Evaluate the message.
  • Neutralize your thoughts, feeling and opinions to avoid bias and prejudice.

Consider the following guidelines when creating documents:

  • Never say anything that you would not want read out loud to a jury.
  • Assume that what you write (especially in social media) will exist forever.
  • Watch out for documents that blame others or describe internal disputes.
  • Do not discuss liability issues in documents (unless covered by a privilege).
  • Do not make unsupported statement, conclusions or opinions.
  • Do not exaggerate, speculate or editorialize.
  • Use data and facts to support your opinions.
  • Don’t author documents outside of your area of expertise.

Good communication during a discovery project will allow you to successfully pass accurate information from one person to another, conduct effective discovery, avoid mistakes/misunderstandings, reduce risk, and maintain accurate group situational awareness throughout the entire discovery process.