Document Review, Technology

An Illustrated Guide On How To Avoid Drafting Horrible ESI Discovery

Bad discovery is how baby benchslaps are made.

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Look, e-discovery is not going away. Doc review (at least English language doc review) will never be high paying or sexy. But, as e-discovery becomes more and more prevalent, it will continue to become a larger part of the legal job market. So, how do you get out of the rut of sitting in a windowless room, making $10 an hour (or less), typing the date of each e-mail you read into the date field of your coding software? How about taking your knowledge of the front line ESI issues (document coding) and learn a little bit about managing ESI projects, starting with how to draft discovery? As we learned yesterday, ESI discovery can be tricky and employers mostly know that, so understanding the concepts behind it can help you move through your career.

Since Bryan Garner was just in my town last weekend, and I’ve been spending a lot of time drafting ESI discovery requests and dealing with  opposing counsel’s requests, I have been thinking a lot about drafting proper ESI discovery requests, including proper wording…

What You Must Include or Consider in Your ESI Discovery Requests

Form of production: As I previously discussed, you must include a section on the form of production, even in small cases. One of the distinguishing traits of e-discovery is the ability to review files in a format that allows you to get more information about each document.  Imagine you have a case where an patron of a fast food restaurant got e-coli. In your discovery, you get a memo dated one month before the incident from the restaurant manager congratulating all employees on achieving 100% hand washes after the bathroom. You cynically think, “Yeah, I’m sure it was made after the accident and backdated for litigation. If only there was a way I could find out for sure…” In e-discovery, if you properly address the issue of form of production in your requests by specifically requesting native files, you would be entitled to the native Word file, with which you could check the “Created on” date to find out for sure. A crafty opposing counsel would just hand over documents bates stamped and in PDF or TIFF formats, and they would get away with it if you did not specify otherwise.

Metadata fields: You should specify which metadata fields will be preserved when the data is turned over to you. In large cases, vendors will collect the electronically stored files, process them, and organize them in an electronic storage database. Certain information can be preserved and provided in a load file upon request. A load file is basically a spreadsheet of document data you can use to import into your database for review. It might contain categories, such as file name, file extension, document date, e-mail subject, etc. This helps you organize your data for review when you receive it.

Handling of duplicates: Be sure to address how duplicates will be handled. If one person sends an e-mail to 15 people, you now have 16 identical copies of the e-mail. If that e-mail had a 5mb attachment, you now have 80 mb of data you are paying to host, instead of 5 mb, so, having opposing counsel produce non-duplicates would be a good thing. On the other hand, if they do not give you the copies of the e-mails on those 15 other peoples’ computers, you may run into foundational problems if you want to use that document with one of the 15 recipients. One of the recipients might have had the e-mail in a spam folder, or in an Outlook folder called “important e-mails about our ongoing fraud.” You should weigh the pros and cons, and consider how duplicates should be handled in your case.

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General Things to Avoid in All Discovery

Using Lawyer-Patented, Awkward Language Does Not Make You Sound Smart: There are pretty much two types of lawyers in the world, those who are really good writers, and those who believe that they are really good writers. Lawyers have a specific way of communicating that they mistakenly think is more accurate. This is painfully obvious in discovery drafting.

Let me Common Core this for you and make it into a hypothetical: Joe Esquire goes into a sandwich cafe and sees that there are a lot of condiments he can get on his sandwich. When asked which condiments he would like, he responds, “I would like mayonnaise, but I would also like all of the condiments.” Or he might say, “I would like each condiment listed. I would also like every condiment listed.” He then awkwardly eats his sandwich with one hand as he pats himself on the back with the other for being so precise in his language. I am, of course, referring to the “Any and All” and “Each and Every” pitfalls that almost every lawyer makes in discovery requests.

Here’s how you get around that. If you want all of the documents, you can never go wrong with just saying “All documents…”

Don’t Define Things By Listing All of Their Synonyms: In general, you should avoid complicated prefatory instructions as much as possible. Some states, California included, state that including instructions in your interrogatories or Requests for Admissions is prohibited. But, if you can increase clarity by defining some key terms that are unique to your case (and it is permitted), you should do it. You should never use a definition section to remind your opposing counsel what the dictionary definition of a word is.

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Try to picture an attorney making the argument to a judge that the reason why a certain document was not produced was because it only pertained to and concerned a matter; it did not relate to the matter. That is how baby benchslaps are made.

Jeff Bennion is a solo practitioner from San Diego. When not handling his own cases, he’s consulting lawyers on how to use technology to not be boring in trial or managing e-discovery projects in mass torts/complex litigation cases. If you want to be disappointed in a lack of posts, you can follow him on twitter or on Facebook. If you have any ideas of things you want him to cover, email Jeff at jeff@trial.technology.

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