3. Use Technology and Methods to Repurpose Productions

Far-reaching, complex litigation is notoriously expensive. Corporate clients will spend millions defending a case. Typically, they hire the most expensive legal minds to review massive document collections for relevance, privilege and redaction. Dozens or even hundreds of internal and external support specialists spend countless man hours engaged in processing, de-duplicating, searching, sorting, organizing and producing the relevant materials. If all goes well, the discovery deadline is met, production sets are handed over to opposing counsel, everyone moves on. The data, with its accompanying attorney work product, is never used again.

Without a doubt, major companies of all sizes face complicated, large-scale many times throughout the course of their existence. Early in the assessment of a large-scale action, defense counsel should be able to identify the key custodians and issues. Litigation is cyclical, and the plaintiffs’ bar tends to bring lawsuits according to what is fashionable (and profitable) at the time. As a result, key custodians will resurface in subsequent matters again and again, and issues that corporations litigate today will remain relevant for years to come. Therefore, when litigators disregard the work product of previous matters, they compound the expense of the original litigation. By neglecting to repurpose the productions in their archives, these attorneys effectively force their corporations to pay the cost of discovery again and again. The work product represented by prior productions - the tagging, privilege calls, redactions and notes - is a valuable resource that can significantly improve the overall return on the firm’s discovery investment.

In fact, for corporations that do business nationally, it is common practice for plaintiffs to bring nearly identical actions in a multitude of jurisdictions. In this instance, it is not only practically and financially efficient to preserve the work product from each case, it is absolutely vital to prevent allegations of spoliation. The real battlefield for large action defendants is focused not so much on the issues as on the discovery process. Aggressive and sophisticated plaintiffs’ counsel will do anything to create the suspicion of inconsistency and inaccuracy, thus creating fear of an adverse inference instruction in the corporate defendant. Their tactic is to share and compare productions across jurisdictions, find any “gap” or “inconsistency” in the production, and bring it to the court’s attention. Once the inference is made, whether just or unjust, the corporate defendant is no longer defending the issues, but trying to prove it is not deceiving the court. This is arguably the worst situation that a corporation can face - the $1.4 billion verdict in Morgan Stanley v. Zubulake serves as a potent example of the disastrous outcomes that a philosophy of “disposable discovery” can unwittingly promote.

In order to prevent this scenario and create a defensible litigation climate, corporate defendants must utilize technology to ensure consistency among productions. Corporate counsel must work with litigation support managers and document retention specialists to learn how to “package” productions so that a.) re-usable work product can be preserved, promoting cost-avoidance, and b.) productions across jurisdictions are guaranteed to be consistent, thereby preventing sanctions and suggestions of spoliation.

Very often, an objective litigation technology partner is an important component of the corporation’s approach to managed litigation. Packaging, repackaging and repurposing production materials can certainly be managed in-house, but it involves a significant investment of time, personnel, and money. In many instances, larger corporations will handle some of the parts of the discovery process, but will leave the production packaging and work product / data preservation to a trusted third-party provider. In most scenarios, a conscientious litigation support firm is better prepared to design and impose standards for production that ensure consistency, accuracy and completeness – as specialists, they are free to focus on the coherence of the process and the consistency of the production. Corporate counsel and its internal support staff, by comparison, are consumed by the host of requirements and considerations that surround the actual litigation. Additionally, the presence of a high-quality service bureau adds another layer of protection against court scrutiny. Such a partner can provide timely assistance in any or all of the phases of a large-scale production, and can guarantee (with an affidavit or court testimony, if necessary) that productions are complete, consistent and accurate.