I would like to wish a very Happy One Year Anniversary to DISCO’s Help Center! In celebration of this anniversary, I wanted to share the great progress that has been made over the last twelve months. Here are some cool facts to show how much the Help Center has grown since being launched in June 2015.
We all get into the law game for different reasons, but regardless of why we signed up, we want to be effective at what we do. Law schools don’t typically teach students how to practice or be effective counsel. Instead, those skills are learned on the job. This blog -- the first of a three-part series on what new attorneys often learn too late when starting out in the practice of law -- is about deadlines.
For months after law school I would periodically wake up in a cold sweat, heart pounding, thinking not only that I was late for class, but that I had missed most of the semester and was about to walk into an exam completely unprepared. This fit right in with the classic dream of showing up for class in underwear.
Shortly after taking the Texas bar -- the following weekend to be exact -- I started working in my first real commercial litigation job. (Some would say I literally just started working there without interviewing or being asked by anyone, but that’s another story for another time.) After being on the job for a few weeks, I started waking up in a cold sweat for reasons other than the fear of missing an exam. The stakes had been raised. Real people and real organizations were relying on my work and I would have to learn to live with the sinking perpetual feeling that I might miss a deadline.
At the end of litigation, unless the parties have settled and agreed that each party will bear its own costs, the prevailing party may want to seek recovery for its expenses (apart from attorney fees, which is a much broader topic and not within the scope of this piece), such as court reporter fees, document duplication, ediscovery processing and database fees, etc. Typically, ediscovery costs for collection, processing, review, and production of electronically stored information (ESI) are the largest cost component of litigation expense, so it is natural that the prevailing party desires to recover as much of this as it can from the losing party. This piece focuses on recovery of ediscovery expenses under the applicable federal statute and corresponding case law, but your results may vary depending on the laws of the jurisdiction you find yourself in.
DISCO creates cutting-edge software for the legal industry, which means that most of my blog posts end up discussing the finer points of software's role in ediscovery. However, as DISCO was founded by lawyers, and many of us at DISCO are still lawyers first and foremost, it seems appropriate to talk about a topic currently trending near the top of the public’s perception of the legal world: an evenly split Supreme Court.With the unexpected death of Justice Antonin Scalia, the Supreme Court has naturally received a significant increase in media attention. In particular, there is concern about the possibility of a dysfunctional Court: what happens when major issues can’t be decided because of a tie? This agitation, at least superficially, seems well-founded since the Court has recently deadlocked on two cases: Friedrichs v. California Teachers Assn. , 578 U.S. ___ (2016) and Hawkins v. Community Bank , 577 U.S. ___ (2016).
Relax, though. All is not lost. In fact, I suggest that having a vacant seat provides some much-needed breathing room and an opportunity to determine whether the Court should even be deciding certain contentious cases. More specifically, some cases may involve political questions (as defined by the political question doctrine) more correctly addressed by other branches of the government.
Some of you may remember the 1986 hit movie “Top Gun”, where Tom Cruise’s character, F-14 pilot Maverick, turns to his back seater, Goose, and says “I feel the need . . . the need for speed!” Having flown jet fighters myself, I know that speed often equates to whether you live or die in the air-to-air combat scenario. Having flown a desk as a lawyer now for a few years, I find that there is also a need for speed in the practice of law and, in particular, the eDiscovery practice. The discovery phase of any litigation is almost always the single most time-consuming and expensive phase, so anything one can do to reduce expense and time is going to be beneficial.
There are some in the eDiscovery space who argue that prioritization of data for review is more important than speed in search, document rendering, etc. While I think few would argue about the importance of prioritization, it should not come at the expense of speed. A state-of-the-art platform will do both – prioritize faster as well as search and render documents faster – and be the best of both worlds.
With all of the exciting and innovative new features that DISCO has been working on lately, we thought this was the perfect time for a makeover -- making DISCO look as great on the outside as it does on the inside.
We put a lot of careful consideration into the decisions that guided this rebrand, and are exceptionally proud of the results.
In Part 1 of this topic, I listed a number of steps parties can take to get increased judicial intervention in discovery issues and left open the question of whether those steps are actually desirable. In this Part 2, I explain that my opinion is that lawyers should not be engaging in most of these behaviors. Instead, we should embrace technology and our professionalism.
Certainly discovery costs are an important factor for everyone to consider in litigation, but steps parties can take to increase judicial intervention in order to reduce costs generally seem to impose unjustified limits. I believe that the new amendments to the Federal Rules (and most active litigators’ mindsets) are based on knowledge of and experience with antiquated and expensive ediscovery technology. In essence, these amendments view limits on what people can do as a more effective approach than embracing ever improving technology.
Let’s take a more detailed look at the suggestions mentioned in my last post...
I was listening to a speech about the upcoming changes to the Federal Rules of Civil Procedure, and the speaker relayed some research suggesting that something like 87% of the federal judiciary are reactive instead of proactive when it comes to ediscovery; they do little to nothing until the parties bring a discovery dispute before them. The idea was that increased judicial activity could help manage the cost and scope of discovery. The speaker encouraged the audience to get judges more engaged in ediscovery early in the case, but he didn’t elaborate on how to follow his suggestion. I think it is worthwhile to consider some ways to engage the judiciary before a discovery dispute arises, but more importantly, I think it is worthwhile to consider whether such engagement is a good idea.
The discovery process is so much more than reviewing and tagging documents, assessing privilege, and creating productions. All too often, discovery tools ignore the many other steps and functions that lawyers and litigation support need to perform as part of discovery -- such as creating search logs, exhibit sets, and more. They forget, or just don't know, that better tools to perform these tasks are very much needed, too -- ideally within their discovery platforms.
CS Disco is pleased to announce the hiring of Trevor Jefferies away from his AmLaw 200 practice. Trevor’s addition strengthens DISCO’s already-deep legal DNA. With extensive litigation knowledge and experience, Trevor joins DISCO from Arnold & Porter, where he was working on matters arising from a wide variety of cases in jurisdictions across North America and Europe, including commercial and patent litigation. While at Hogan Lovells, Trevor was a founding member of that firm’s Electronic Information Group, where he led the development of the firm’s internal ediscovery collaborative knowledge base and was a core member of the ediscovery compliance team.