Prevailing in a lawsuit involving a major corporation requires new ways of thinking, new skills, and a new overall approach to litigation. Attorneys need to understand how their adversaries are different than before, how to overcome the obstacles that will be thrown at them, and how to develop their own aggressive strategies. Technology that employs language analytics for discovery is at the heart of successful litigation. The technology must perform advanced search and retrieval; do advanced merit review; not be based on traditional but outmoded document coding.

The 21st century corporation is multi-national; multi-cultural; and multi-lingual. It is both physical and virtual. Within it, documents are created, managed, communicated, and preserved very differently. Therefore, attorneys must change the way that they review and evaluate materials, as well as the way that the evaluations are managed and conducted. Unlike the static nature of even the largest class actions and MDL’s of the past, attorneys must now confront the demands of dealing with millions of documents, found in many different devices, maintained by large numbers of custodians (as in pharma litigation). The technology must provide attorneys with the leverage to discover and focus on the vital and important, in ways that are faster, more efficient, more cost-effective, and facilitate earlier case assessments and settlements.

In this complex new world:

Corporations produce and distribute massive amounts of information in order to function.
The information cannot easily be deleted, even following well-defined document policies.
People are often careless and indiscreet in their use of words in electronic communications.
Electronic information is duplicated and can often be found on the devices of persons far removed from those at the top of an organization chart (the traditional custodians and deponents).

It is critical to formulate a discovery plan before the meet and confer. It is essential to fully understand your client’s and the adversary’s information technology systems, particularly how and where documents are maintained. Attorneys must understand the differences between “accessible” and “inaccessible” documents, especially the differences in production costs. It is necessary to demand the right production format standard. Attorneys must always be prepared to use a 30(b)(6) deposition. Evolving case law makes it clear that failure to do these things may significantly limit the rights of parties to discover relevant documents. The consequence of counsel’s confusion and the resultant delays, may lead to sanctions, unnecessary cost-shifting or even the taxing as costs of all of the other party’s electronic discovery expenses.

21st century discovery, grounded in advanced search and retrieval technology – not just static search terms but dynamic analytics – is a key to prevailing. Counsel must be aware of documents beyond those in the custodial files of key persons - documents “held by others”, documents that “mention” the key persons, and documents “affiliated” with the key persons. We call that comprehensive group of documents the Crivella West custodial superset. Many deponents have been surprised when confronted with hot documents that their counsel had not prepared them to address.

Litigation Holds: The duty to preserve attaches as soon as a party has a reasonable belief that litigation might ensue; it is fact specific as to when that occurs. Courts are split as to whether counsel must implement a written litigation hold. Since counsel may be personally subject to sanctions, and clients may be subject to significant monetary and adverse inference sanctions, a written litigation hold should be disseminated promptly. It is generally advisable to send opposing counsel a detailed litigation preservation letter, demanding that his/her client adhere to well-established retention duties, particularly regarding verification and periodic re-checking that the necessary custodians have received and understand the meaning of the preservation instructions. Counsel should consider spoliation motions as a tactical strategy , when warranted. Rules 26(g) and 37 provide judges with broad discretion to impose sanctions against parties who refuse to act appropriately during discovery. Realistically, attorneys should approach discovery with the concern that opposing counsel might be attempting to create the appearance of compliance, while his/her client is attempting to hide important documents.

Privilege Logs: Privilege logs must be maintained in a manner that allows opposing counsel and the court to adequately evaluate whether the privilege or protection has been properly asserted. Litigators should always consider challenging and possibly piercing the privilege log. Persons in lower level positions in various departments and secretaries are often copied and/or sent copies by the senders and intended main recipients. Receipt by such persons of otherwise privileged documents may defeat the privilege claim. Unredacted copies of allegedly privileged documents may be carelessly produced. In a recent major pharma case, defendant lost its assertion of privilege in regard to hot documents because of these lapses. Counsel should be particularly aware of the following: that every claim of privilege meets the required basis for the claimed privilege or protection; that each attachment has been logged and warrants its own privileged treatment, even if the email itself is clearly privileged; that email strings are examined and have been logged; that near duplicates are not treated the same as duplicates; and that produced privileged documents have met claw-back criteria (agreed upon by the parties and/or required by case law) to be entitled to return. Know the Rules, particularly F.R.C.P. Rules 26, 37 and 502, and their state counterparts.

Conclusion: Discovery in 21st century litigation requires finding and advising clients about documents beyond those that are authored or received by key witnesses. The right technology can allow counsel to identify hot documents, wherever maintained; preserve privilege claims and/or pierce the privilege log; apply the federal and state rules to maximum advantage – in short, bring light into dark places, look in the right haystack and find the needle. Success in 21st century litigation requires the knowledge of 21st century strategies and the use of 21st century technology.