THE HIGH STAKES OF DISCOVERY
While there has been a revolution in the creation and storage of documents, little has changed regarding the main event – the attorney review. Its main vulnerabilities remain unaddressed.
Firms spend $$millions on discovery technology with one goal: to create a subset for attorney review, which in turn costs $$millions. Technology can help but only as integrated into a different system for conducting reviews.
Despite the enormous expenditures, great risks and inefficiencies remain. Faulty coding creates the greatest substantive risk, especially the failure to recognize privilege, importance, and responsiveness. Reviewer failure means a failure to act competently, a failure to respond to discovery in good faith, and a failure to know what you’ve given to your opponent and what you’ve received. Inconsistent coding abounds, causing not just substantive risks, but also wasting enormous amounts of money and time, all resulting in an unreliable database.
To meet these challenges, firms need to take a new approach embodied in a comprehensive system, a different structure and methodology.
A NEW APPROACH TO DISCOVERY
Will Hoffman has spent most of his legal career litigating complex cases for the likes of Skadden, Arps and specializing in massive discovery projects. Will’s discovery expertise derives from over 10,000 hours studying, devising, and applying solutions to the design and management of such projects.
Will has developed an approach based on six main elements to ensure a successful project. He has combined these six elements into a proven system for reducing risk and cost while obtaining superior results
Adopting these elements reduces risk and saves money and time. To reduce the risks described above, the system maximizes each reviewer’s ability to apprehend the meaning and significance of each document and to code it accurately and uniformly. Coding by subject in small teams dramatically increases accuracy and uniformity while decreasing a project’s cost and duration. In addition, the system incorporates steps to assess, validate, and refine the approach.
Firms focus on the ability of tech tools to identify all responsive documents, yet the attorney review of the created subset is every project’s Achilles heel. Few reviews stand up to close scrutiny, with the validity of a party’s good faith unchallenged because of each party’s mutual reluctance to raise the issue. Every step can be materially improved – in both efficiency and accuracy. Re-review QC does not cure the structural vulnerabilities present in virtually every project. Indeed, to the extent caught, the inconsistency and inaccuracy of coding increases a project’s cost and length substantially.
The system uses expert intervention to resolve the two most important factors determining a project’s cost, quality, and speed, that is,
• to dispose of as a high a proportion of irrelevant documents/ESI as early as possible, and
• to group and review the remainder by subject, by small teams, on an ever-refined, iterative basis.
Doing these well reduces costs and risk, especially with the implementation and integration of all elements. Because key elements of the system rely on lawyers' knowledge and expertise, for convenience, it is referred to as Expert Triage. The Six Elements of Expert Triage