How Not To Conduct Discovery

Litigators, don't let your storytelling get lost among a sea of documents and other information.

'The Paper Approach' to discovery: not good.

‘The Paper Approach’ to discovery: not good.

All good litigators know that their job is to be able to tell — and sell — a story to a jury or a judge. That story is made up of facts, spun together in a way that creates a picture of how that story should end. We call it the closing argument. But it can also take the form of a summary judgment motion, mediation statement, or other presentation.

Somewhere along the way, the storytelling has gotten lost among a sea of documents and other information, and we spend more time searching through meaningless data than piecing together the story.

So stop doing that.

Instead, before you start discovery — before you request a single document or respond to a single request — frame out what the story is that you want to tell. Yes, that means you’re going to have to dig in with witnesses and understand the framework of that story. Write the closing argument that you want to give. It’s not going to be perfect, and the story is going to change as you go along. But your framework will be mostly there. And then you can use that framework to define the scope of discovery with the other side.

Your story is a puzzle — except that instead of all the pieces coming already in a box to put together, you have to find them. And to find them, you have to know what you are looking for (the facts), where they might live (the sources of ESI), who might have them (the custodians), and when they might have happened (date range).

Where to begin?

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Everything starts with the jury instructions. Those instructions tell you every element you have to prove to get judgment on a claim, and conversely what you have to defeat a claim or what your defenses are. The theories of liability and the elements of those theories are the frame of your puzzle, and you need the facts to put inside to make the picture complete. You wrote the complaint or answered it, so you already know what you have to do.

Let’s take a simple example: a breach of contract claim. There are four elements to a breach of contract claim: (1) duty, (2) breach, (3) causation, and (4) damage. Take a piece of paper and lay out each of the facts you need to prove each element, who you think might have them, and where the facts might live (on a mobile device as a text, in email, on a Fitbit, etc.), and when you think it happened (date range). I use a chart, and when we find the pieces, we add them to the chart and create an electronic binder on our review platform. (Summary judgment exhibits are now assembled — booyah.) Now that you know what you need, you can start drafting targeted discovery — identifying what you need, who has it, when it was created/sent/received, and where it lives.

I know it’s not that easy, and you’re going to get a lot more info than just the facts you need. You have to do broader discovery to see what’s out there and what other nuggets you can find — but you don’t need emails and smartphones from 20 people for five years. You get the idea.

I don’t know why, but lawyers are still using what I call The Paper Approach to discovery — asking for a broad reach of documents (e.g., all communications between ABC company and DEF company about the sale of widgets between year 1 and year 10), and then digging through it all. Sitting in a room and thinking up the categories of documents for discovery requests. Sound familiar? That’s The Paper Approach. The Paper Approach does not work with the volumes and number of sources of ESI — it’s just too much stuff. The time and cost to get to those broad categories of documents isn’t practical, and courts are finally saying no via proportionality.

Instead, think about the story. Look for the puzzle pieces to fill in and adapt your story as the pieces and frame come together. Let the story focus your discovery strategy.

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It’s the ESI approach to discovery. Try it. It works. You’ll build your client relationships through good results, rather than spending more than necessary. That’s what your clients want. And you can give it to them.


Kelly TwiggerKelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant — an online eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at Kelly@ediscoveryassistant.com or on Twitter: @kellytwigger.

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