What's wrong with Productions: Break on through (to the Other Side)

The letter was a spoof.

Or was it? Some readers thought that there was some truth to it. Some even thought it was real.

The adversarial nature of law firm representation has generated an industry that's focused on lawyers looking at lot of documents and then sending or withholding them from the other party. arguing about it all and then billing you for it.

Technology is slowly solving the challenge faced in the 'eDiscovery' phase of litigation and investigation but the archaic institution of Disclosure or Production to opposing or investigating parties, remains relatively untouched.

Tried to run, tried to hide

In examining the incredible intricacies of the many thousands of productions that I have participated in, I imagined all of the associated time and effort that I've put in.

After a few minutes of deep thought shook myself out of the induced trance-like state. It's shocking how much of the high-stress, high-octane life of an eDiscovery professional is spent on perfecting the exchange of documents. And personally I'm embarrassed about it.

The laws and regulations give rise to the concept and necessity of productions but it's how that concept was historically interpreted and (still) misused and abused by lawyers, vendors and consultants, that I'm highlighting in this article.

Made the scene, Week to week, Day to day, Hour to hour

Discovery, in all it's glory has shaped me (for better or worse), into whatever it is that I am today. It helped me to understand data and technology more than I ever could have done in any other technology discipline.

It's also put me through a lot of pain, sleepless nights (hours, days, weeks or little or no sleep), including a number of highly stressful 72 hour periods high on caffeine and a buzz of constant adrenaline, with the occasional snooze with my head resting on a keyboard.

I'm not going to examine every twist and turn in my stream of consciousness on the subject. That's too much for any single article. Instead I'm going to propose a solution that will make everyone's lives much easier.

Arms that chain us, eyes that lie

Let's think about a simple version of the Discovery problem: there's some reason to investigate the evidence. Then (possibly) some reason to disclose the evidence.

I have no issue with investigation. We need to unearth the truth of a matter. Fraud, HR issues, litigation, regulatory response. It's perfectly reasonable for lawyers to search for an review information to understand the causes and drivers of the issue in question. It's a learning exercise, that's being improved upon continuously by technology and processes. It may be slower than it needs to be, but it's getting there.

Here are my problems:

1. Why are productions so intricate and 'custom'?
2. Why are we 'sending' anything in the first place?
3. Why hasn't the concept been innovated or improved?

I argue that these inefficiencies are brought about by the gladiatorial combat of adversarial or defensive law firms over egging the concept of risk in relation to what should be a simple exercise in discussion and agreement.

Let's take each step by step.

1. The Gate Is Straight

The parody letter from Fighty, McFighty & Willams that brought you here, is supposed to be a comic take on the queries I've had to deal with over 17 years involved in Litigation Support.

Naturally, evidence provided in a production needs to be sound and unquestionable. But it's inherently complex to manage and maintain the life-cycle of evidence I can think of a large number of matters where there have been valid questions over confusing information provided. However, for 99.9 % of these issues, there was simple human error or explainable technical nuances.

My issue isn't with the questions. It is with the cost and tone of the communications around these issues.

It is extremely rare that the content of evidence is called into question in relation to civil or regulatory matters. Pulling apart something in detail will reveal inconsistencies and issues, but this takes time and costs your client significantly in terms of letters back and forth and RARELY amounts to anything other than 'here's an overlay'.

In an additional twist, it's traditional for a law-firm partner to assign Discovery to a junior member of staff.

That junior party is naturally intent on impressing the boss. They are also less experienced and although they use Twitter and can operate an iPad, they rarely have an inkling when it comes to handling complex data. The natural approach they will have is borne out of the excitement of the adversarial world they are growing to love (or hate) and the lack of knowledge they have about what they are dealing with. So they ask questions and raise issues with a cynical and distrustful tone.

My solution to this is simple. Instead of listing out what is wrong with a production and hammering the other party with barbed letters, have your experts speak to their experts. One phone call, meeting (or dare I say it, video conference) where the perceived issues can be discussed and explained in simple terms will most likely result in a few nods and an agreement on the most appropriate way forward. Better results. Fraction of the cost.

To this day, I am unclear why Case Conferences (Meet & Confers) that discuss Discovery, Disclosure and Production, still fail to include anyone with technical expertise. This is more prevalent as an issue outside of the US, where knowledge and education in these areas are still fundamentally lacking. Perhaps my US connections can give me more of an up-to-date feel of how that's changed over the years? We need to fix this.

2. To The Other Side

Why send anything "to the other side"?!

Why not just give the other party or regulator access to the amazing platform you've been using? It's possible. And it gives them the ability to review, export, tag, search.

Hold on, won't that give you access to their coding decisions, comments, activities? Restrictions and auditing can be put in place by an independent vendor. And anyway, you're a trusted law firm. Why would you be seeking to gain an unfair (even illegal) advantage by accessing this information.

Hell, why not even SHARE the SAME document review platform to halve the costs?

Too progressive? Nope. It can be done effectively, I've seen it happen.

3. Dug Our Trea There

It's the way we've always done it. The vast majority of productions still take the form they did 20 years ago. The "Letter/A4 sized tiff images, B&W, 300dpi, Group 4, .dat file" Concordance derived standards still persist from the days of scanning and coding reams of paper.

The progression of applications have been modelled to fit this archaic concept and rather than question the methods or formats, software manufacturers have simply continued to fit the mould dictated by hundreds of years of adversarial combat.

Attempts have been made to create consistent exchange formats, the earliest example I remember from 2006 (?) with the LIST group in the UK attempting to create a standardisation. Now we have EDRM XML, which is a thorough and well thought out attempt at agreeing some standards. But still, in my experience at least, no-one is really using this frequently.

The reason? That if we were to start to utilise consistent and mutually understandable formats and processes, we'd suddenly all lose the ability to create and complain about problems. "26-year old James Smythingly-Duckworth Junior", trainee at Fighty, McFighty & Williams, would have less to misinterpret and argue about, and thus less Fight, Fighty and Bill..

Yeah, yeah, yeah, yeah

Some of you might recognise that I'm being deliberately controversial here in order to provoke a debate of some kind. And you'd be 100% correct in that assertion. But without a wider debate, the status quo remains and clients that I represent are still experiencing the costs and pain of this adversarial and overly complex approach.

Taking a more consultative and co-operative approach, may result in lowering revenues for someone, but it will also lead us to be progressive and value conscious for our clients. Those considering your matter from a judicial and regulatory perspective would likely view such co-operation as being far more consistent with the sentiment of the stated laws and regulations.

You'd also be lowering stress levels, reducing coffee consumption globally and thereby also contributing to saving the planet.

HTH,

Martin.

Disclaimer: This is all my own opinion and experience and isn't reflective of the views of my current or previous employers. I like to argue about other people's productions just as much as the next person.

About Martin: Over the past 17 years I've worked with Chief Legal Officers, General Counsel, Compliance Professionals and ‘Big Law’ firms globally, to provide, create and implement systems and processes that reduce the likelihood of failure during a crisis.

About the Song: Break On Through (To The Other Side) is a song written by The Doors for the purposes of me using the references in this article.