Strategy is key to finding relevant and responsive discovery to requests for production. In the case of FlowRider Surf, Ltd. v. Pac. Surf Designs, Inc., the Defendant brought a motion to compel production of documents for all search term “hits” without any relevancy review.1 The Defendant claimed that because their requests for production were “narrowly-tailored to specific issues in this case and thus any resulting ‘hits’ are presumptively relevant and responsive.”
The Plaintiffs brought their opposition before the Court, rather than settling their dispute like Alexander Hamilton and Aaron Burr.
The Court began its analysis that Federal Rule of Civil Procedure Rule 26 allows “discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The Court further highlighted the goal of Rule 1 to “promote a ‘just, speedy, and inexpensive determination'” that the action was included in the parties’ ESI Protocol.
The Plaintiff’s Chief Operating Officer provided the Court that the search term “hits” contained a substantial amount of irrelevant information. For example, one search term alone of a person’s name had 38,000 hits. The specific individual had been involved with the Plaintiff for over a decade and held multiple patents, in a case where only one was at issue.
The Court held that the Plaintiffs could cull irrelevant information under the rules of proportionality. Moreover, the agreement to conduct searches in the ESI Protocol did not constitute a duty for the Plaintiffs to produce all resulting search hits.
Producing electronically stored information is more than simply running a search and hitting “produce.” When it comes to document review strategies, plaintiffs and defendants share some common goals. For plaintiffs, document review has two core objectives: 1) identify electronically stored information to support your case and 2) respond to requests for production. These objectives are highly related, because what supports your case is 99% of the time also responsive to discovery requests. Moreover, these strategies can apply for defendants as well, because they are many times responding to discovery requests that require reviewing large amounts of data. Effectively meeting these twin goals requires developing a strategic document review plan that does not waste time, money, or resources.
Your Right Hand Man with the Document Review Plan
“I’ll rise above my station, organize your information, ‘til we rise to the occasion of our new nation.” – Lin-Manuel Miranda, 2015, “Right Hand Man,” Hamilton (Original Cast Recording).
The attorneys leading the case and project manager should determine the following before starting document review:
- What is the story we are trying to to tell?
- What are we trying to prove?
- Who are the key individuals?
- What are the issues we want to identify?
- What are the key events in the case?
- What are the possible privileges in the case?
- What are the known deadlines?
Answering these questions will empower a document review team to strategically use Everlaw for discovery. The first question is highly important. What happened to the client that resulted in them being in a lawsuit?
Lawyers tell a jury their client’s story based on events that impacted their client. This can be a former employee leaving an employer with confidential information and getting hired by a competitor, or an auto accident and all of the related medical treatments, or when a defective product was purchased and used.
Storybuilder Chronology can be used to create a timeline of key events. This requires identifying the key individuals, events, and issues in the case, so they can be added to the Chronology. As communications and documents are identified, they can be added to the Chronology to create a timeline of events.
Storybuilder can be used to outline a client’s story with the related jury instructions for their causes of action or defenses. For example, consider the following example in a fictitious breach of fiduciary duty case:
Having facts organized makes it easier to connect the dots to supporting legal arguments. Creating issue codes for the different causes of action or defenses is another way to help manage discovery.
Proving Your Case
“I practiced the law, I practic’ly perfected it. I’ve seen injustice in the world and I’ve corrected it.” – Lin-Manuel Miranda, 2015, “Non-Stop,” Hamilton (Original Cast Recording).
Clearly defining the client’s story will allow attorneys to focus their review to find discovery that supports their client’s case. The search strategy for supporting information can be based on the allegations in the complaint, answer, and the known terms for the “story” of the case. In the above example, this requires first finding documents that show a fiduciary relationship existed between Burr and Hamilton. This could be a corporate document such as the articles of incorporation or operating agreement. As these documents are found in Everlaw, they can be added to the Storybuilder outline.
The next step is showing that Burr was to act on Hamilton’s behalf to negotiate a service agreement with the Widget Development Company. This could be an email message with Burr and Hamilton discussing the agreement and Burr’s communications with the Widget Development Company.
The third element is showing that Burr breached his fiduciary duty by acting against Hamilton’s interest by eliminating the service agreement. The search strategy could be for communications between Burr and his contact at the Widget Development Company on the date the contract eliminating the service agreement was executed.
It is extremely difficult to prove a negative, so finding a lack of informed consent for the fourth element can be met with communications showing Hamilton protested the elimination of the service agreement.
The issue of Hamilton’s damages and Burr being a substantial factor in causing Hamilton’s harm can be shown with loss of income.
Responding to Discovery Requests
We just assume that it happens – Lin-Manuel Miranda, 2015, “The Room Where it Happens,” Hamilton (Original Cast Recording).
Reviewing electronically stored information for responsive information can turn into a quagmire of reading thousands of email messages. Don’t get stuck in that quagmire.
Strategically responding to requests for production requires the following:
- Create issue coding for each request or related series of requests
- Develop searches based on the requests for production
- Manage Assignments for Attorney Review
- Build Prediction Models based on Review
- Define Privileges
The first step before starting review to identify responsive discovery is to create issue codes. One option is to create an issue code for each request with a short description of the request, such as RFP001 – Corporate Documents. This allows for easy labeling of responsive discovery, which will be extremely helpful if responsive discovery has to be withheld for privilege.
A project manager can next build searches based on each request for production. These searches can also be saved and favorited with a descriptive name. For example, consider the following request for production:
All DOCUMENTS related to YOUR retention of John Jay to perform the window framing of the PROPERTY in May 2015, including, without limitation, letters of retention, scope of services, request for bids, request for proposal, and the contract or written agreement.
This request tells us who could be a sender or recipient of email messages, the author of documents, a timeframe of May 2015, and specific search terms.
The project manager can create an Assignment based on these search hits for a review team to start reviewing whether these hits are actually responsive to the request for production.
The review team should have clear instructions on what actions to take if a search hit is “responsive” to a request for production. Tagging responsive discovery with “Hot,” followed by “Responsive” and “Produce” meets multiple objectives. The first is clearly identifying a file to produce. The second is this coding criteria can be used for a Prediction Model to train the predictive coding on what is responsive to discovery requests. Finally, a coding Preset can be created, so with one click, a reviewing attorney can code a document with “Hot,” “Responsive,” and “Produce.”
Reviewing attorneys should have an eye out for privileged information. This can be anything from attorney-client communications, personally identifiable information, marital privilege, trade secrets, and a host of other evidentiary privileges. Coding should be created for the individual relevant privileges. Attorneys should add a note explaining why the specific document is protected by a privilege. Once review is completed, this information can be exported out as a CSV to create a privilege log.
Don’t Throw Away Your Shot
Strategic discovery review empowers attorneys to focus on the merits of their case and efficiently respond to discovery requests. Document review should be organized with the clear goal of preparing the client’s case for trial. This requires identifying how to tell your client’s story, the facts that support your arguments, and having all of your information organized. Not every story can be told with a Broadway musical, however, preparing your discovery to prove your case will help win the hearts and minds of a judge or jury.
1FlowRider Surf, Ltd. v. Pac. Surf Designs, Inc., No. 15cv1879-BEN (BLM), 2016 U.S. Dist. LEXIS 153563, at *23-28 (S.D. Cal. Nov. 3, 2016)