Those of a certain age may recall the television show The Electric Company’s leading superhero, Letterman. He could resolve nearly any crisis by deleting, adding, or changing a letter, all while grooving to funky 70s’ music. Maybe that’s how we ended up with “eDiscovery.” Troubled by the legal profession’s lack of attention to electronically stored information, Letterman took the “e” from his chest and, well, you know the rest.
Initially, Letterman’s action had a positive effect. Lawyers began to focus on ESI. The Federal Rules Committee made clear that discovery included the “e.”
But, like most superhero interventions, there were some unintended consequences.
The “e” became expensive. It gave rise to a multi-billion-dollar industry. And some began to correlate the “e” with a litigation support function that was far removed from litigation and advocacy. As a result, many litigators relegated the “e” to tech professionals and LegalTech attendees.
Letterman, you are needed again. Take back that “e!”! Federal and state procedural rules make clear that all discovery includes relevant ESI. And all litigators should understand that before they deploy amazing and welcome technologies to cut the costs of document review, they can deploy old-school advocacy techniques to reduce the amount of information that must be reviewed.
The only alternatives are not “exhaustive manual review” and “technology assisted review.” How about “Litigator-Assisted Review” (LAR)? This patent-pending process involves lawyers focusing on, and cooperating concerning, the limited number of sources that are most likely to yield information that is not merely relevant, but that is needed to resolve matters in dispute. These lawyers will have preserved broadly so they can go to more sources if needed.
The lawyers who put advocacy first will be the true superheroes of this story.