When enough is enough….
The 2015 amendments to the Federal Rules of Civil Procedure essentially forced attorneys to focus on the core evidence from the beginning in order to avoid the runaway costs and judicial time of an all-out fishing expedition into tangential evidence in the world of big data.
Part of the problem is caused by the fact that most attorneys who conduct discovery these days have never tried a case and that’s just because most, if not all, cases now settle. In the past, attorneys conducted their own discovery and tried the case as well.
Trial practice helped them learn how to focus on the core evidence from the beginning and when to stop further discovery. With very little cases going to trial these days, the courts realized that instead of trials becoming a means to an end, discovery was taking the place of trials.
To focus discovery, proportionality requires attorneys to phase discovery and ask the important question at each phase; do I have enough evidence to support my theory in the case and if not, why not. If not, then what do I need and how much will it cost to complete discovery.
Core discovery is like the rings in a tree with each ring representing a discovery phase. The innermost is the core evidence and each outlying ring becomes less and less relevant.
The hardest part of the discovery process is for attorneys to hit the stop button. The stopping point used to be reached when the client starts to push back on billing or the case settled. Now the courts are forcing counsel to focus their discovery or it will hit the stop button for them.
To be efficient and effective requires a combination of three essential ingredients – legal expertise, knowledge of technology and a having a defensible process. What complicates this is a bazaar of multiple buyers and sellers in the discovery process with pricing models that can give you a real headache. The fast pace of technology puts the vendor in a much stronger position to advise and manage the technology process of discovery.
As one who has been on both the law firm side as a first chair trial attorney and vendor side as a strategic consultant, I firmly believe that lean and mean discovery requires a strong partnership between vendor and law firm. Counsel should concentrate on delivering legal expertise and the vendor on managing and advising on the technology and process.
Flat fee discovery management like NightOwl’s nVision® and nSure for EnCase® ediscovery is making discovery a more efficient process and helping lawyers focus their discovery pursuant to the new rules.
When enough is enough….