In our last post, I discussed how there are at least four “languages” that are spoken within a typical eDiscovery project: Legal, Technical, Project Management and Client. To be a proficient eDiscovery provider, you need to speak all four languages fluently. In the next two posts, I’ll discuss some of the legal terms and concepts an eDiscovery provider needs to understand to support the lawyers and other legal professionals in the case.
Speaking Legal: Seven Litigation Stages
To be an effective eDiscovery provider, it’s important to understand the overall purpose for which the discovery services are being provided and there are several use cases for those services. It would take several posts to discuss all the use cases, so I’ll limit the discussion for this post to the most traditional use case – litigation. There are typically seven potential stages to a litigation case, as follows:
- Pre-Action Investigation and Preparation: This is what happens before a case is filed. It includes the beginning of a dispute between parties that may eventually lead to litigation, the investigation of facts associated with the dispute and preparation for the potential litigation case, including beginning to understand what evidence (including electronic evidence) you have that might be relevant to the case and what evidence you may need to request from your potential opponent or a third party. While you may not have formally started discovery yet, you do have a duty to preserve ESI if you have a reasonable expectation of litigation, even if the case isn’t filed yet, so you should already be thinking about discovery and the other phases to come.
- Pleadings: This stage officially kicks off the case itself. In the simplest form, one or more plaintiffs files a complaint, and one or more defendants files an answer, with each side discussing the merits of their case. Of course, it can often be more complicated than that, with sometimes multiple amended complaints and answers being filed, cross-actions, third-party actions, or even consolidation of cases into class-actions. Regardless, this is the stage where the allegations are made and the defenses to those allegations are stated that will literally make or break the case.
- Discovery: This is the phase in which most eDiscovery professionals spend the most time, but the understanding of the stages before and after are critical to be an effective eDiscovery provider. Discovery typically includes at least interrogatories, requests for production (RFPs) and depositions, and there are often disputes between the parties about adherence to their discovery obligations that result in motions before the Court. You can’t win the case on the merits at this stage, but you can lose it through bad faith actions that cause you not to meet your discovery obligations.
- Pre-Trial: This stage typically consists of meetings and negotiations between counsel for each of the parties, including settlement discussions. These discussions can take place before, during or after discovery and the costs (or potential costs) associated with discovery can be a significant driver for reaching settlement.
- Trial: It’s estimated that as few as 1% of cases actually go to trial as most of them are often dismissed or settled before the trial stage. However, it’s important to conduct the previous phases with trial in mind in case you do get there, including effectively managing discovery to prove your case and obtain a favorable verdict.
- Outcome and Settlement: Once the trial concludes, there is an outcome and settlement of amount(s) owed by the losing party to the winning party. Often, that can include an award and also reimbursement of costs, which sometimes can include discovery costs.
- Appeal: Of course, if either side of the case is unhappy with the result, they can appeal. There is a time limit to file an appeal – typically 30 days for civil cases per Federal Rules of Appellate Procedure (FRAP) Rule 4(a)(1)(A). When an appeal is won, the appellate court can kick the case back down to the lower court for modifications to the verdict or even overturn it outright, putting the parties back into the litigation process all over again!
Many eDiscovery providers understand the discovery stage of litigation, but they may not understand the other stages and how they relate to the discovery stage. Without that understanding, they can’t effectively communicate with the legal team to ensure that discovery will meet the goals of the case.
In the next post, I’ll discuss seven eDiscovery rules that every eDiscovery provider should know and understand to support the needs of your legal team!
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