There was a time when much ado was made about the mountain of banker boxes attorneys would diligently pour over to find the “smoking gun” in their case. But thanks to the rapid proliferation of data the classic “document dump” is no longer just a petty way of telling opposing counsel you don’t like them. It’s also become impractically expensive and burdensome for everyone.
How can you avoid the dreaded data dump? For starters, don’t write off the Rule 26 Conference, which is often viewed as nothing more than a routine obligation.
A productive Rule 26 Conference depends on efforts made long before the conference itself, in the form of the parties’ early case assessment. You need a clear idea of what the relevant case data is, how much of it there is, and where it is located, in order to speak intelligently on what the real discovery needs of the case are.
From there, parties should discuss how the data can be limited to just the most important or most relevant documentation. This is where a lot of attorneys hit an emotional snag. “Why would I want to do work for the other side? I’m not going to help them make their case.” But this kind of adversarial thinking doesn’t just hurt the other side—it hurts you, too.
“A productive Rule 26 Conference depends on efforts made long before the conference itself, in the form of the parties’ early case assessment.”
For example, I remember a case where one party suggested keyword limiters to the data in an attempt to help narrow the scope of discovery. Another party wasn't satisfied with the keywords and was wary that relevant data wouldn’t be captured by them (which is why thorough ECA is so crucial).
Instead of continuing to work with counsel to find mutually agreeable ways to limit the scope, the attorney asked for EVERYTHING, insisting that they would be able to handle the large amount of data and wanted to do the searching themselves. Well, 1.5 terabytes (and thousands of dollars in data-hosting costs from vendors) later, limiting the scope of discovery didn’t sound so bad after all.
Even if you’re not comfortable with keyword limiters, there are other ways to limit the scope of discovery. For example, date limiters, and custodian and subject identification paired with a rolling production plan can split data-heavy case discovery into more manageable pieces.
“There is a happy medium, proportionate to the needs of each case that can only be found by working with all the parties involved.”
The reality is that a lot of “potentially relevant” data isn’t actually relevant. And it doesn’t do anyone any good to limit discovery so much that the documentation needed to make their case disappears. There is a happy medium, proportionate to the needs of each case that can only be found by working with all the parties involved.
It is in nobody’s best interest to waste time swimming through mountains of digital data à la Scrooge McDuck and his gold coins. In fact, limiting the scope of discovery with a productive and well-informed Rule 26 Conference is one of the best ways to save your firm and your clients money (maybe not quite enough to go Scrooge McDuck-in’ it, but still) and save yourself the headache of unnecessary document review.
