Three questions mass tort and class actions teams should ask when reviewing productions
Though “document review” is often talked about as a singular process, there is a huge difference between being on the producing end and on the receiving end. Reviewing documents to produce and wading through a sea of documents from a defendant to build a cohesive story require completely different strategies and considerations. Here, we will discuss three questions our mass tort and class action clients must ask themselves when reviewing a production to ensure they have what they need to successfully build a case.
The receiving party approaches the documents with a different goal in mind than the producing party, who is more concerned with following the obligations imposed by the Rules of Civil Procedure. The receiving party needs to separate the good documents from the marginally relevant documents from the obviously worthless documents. This goal requires the mindset of an investigator charged with the task of understanding what opposing counsel has delivered to you. The investigator must be able to detect the faintest signal submerged in a sea of white noise.
As is often the case with any complex project, it is important to have a solid plan. These three questions will help you build it.
Did you get what you requested in the form you requested it?
It is a basic, but critical question: Did you receive data in the form you requested? The form of the defendant’s production can have lasting and costly effects on your ability to find the documents that create winning stories. Unfortunately, we see too many lawyers who either fail to set forth a specific form of production in their requests for production or, once they receive data, they learn it was produced in a manner inconsistent with the form requested. The lawyers who failed to specify a form find themselves in an unenviable position, but those that received it in a form contrary to what was specified have more options. As is so frequently the case, communication is your best ally in the process.
TIP: When drafting the ESI protocol, be specific about the metadata you need, the file types that require native production, the loadfile, etc. If you’re unsure of what you need or want, contact an expert — do not rely solely on the defendant’s proposed boilerplate language. DISCO’s Class Action and Mass Tort Team provides consultations at no charge to help ensure the ESI protocol is drafted to be plaintiff-friendly.
“DISCO understands the challenges attorneys face in mass tort litigation and the unique discovery demands we need to address. Mass tort cases are won on handfuls of documents, and DISCO’s products and services team is exceptional at helping plaintiffs find critical documents quickly and easily so we can focus on the merits of the case and helping our clients find justice.” - Morgan & Morgan Partner Michael Goetz.
Did you get what you expected?
What does your initial triage of the production suggest you actually received? Are there gaps in the production timeline? Did they produce from the custodians and sources you expected? Do the volumes of documents per custodian reasonably match what you anticipated receiving? If not, then the question becomes why.
Perhaps they failed to collect from all of the necessary custodians. Maybe they used technology-assisted review (TAR) to identify documents for production without any oversight or validation (see the first tip regarding ESI protocols). Perhaps there is some other reason. The unfortunate reality is that blatant production gaps, deficiencies, and withholdings are often not identified until weeks and months into costly document review which can complicate the remedy, delay your access to the truth, and thus hinder your ability to build the complete story.
TIP: Don’t dive headlong into search and review of the defendant’s production immediately upon receipt. Triage first. DISCO search visualization allows clients immediate insight of big picture trends in the document set. This allows our clients to easily spot gaps in productions, isolate pockets of data that are more likely to be interesting than others, quickly segregate junk documents, and leverage various search techniques to start analyzing critical documents earlier in the process.
“The ability to quickly and thoroughly review millions of documents to easily identify what’s of value to our clients was a critical factor in selecting DISCO as our discovery solution for this litigation. DISCO understands the unique challenges plaintiffs face, particularly in asymmetrical discovery.” - Jonathan D. Orent, member, Motley Rice.
Assuming you have what you need, do you understand the story the data is telling you?
When reviewing an opposing party’s production, the ultimate objective is to uncover the story within the documents. The basic elements of “who, what, when, where, and how” are all contained within the production set, and they are waiting for a skilled investigator to uncover the facts. The reality is that not all review platforms are equally suited for rapid fact development and you need to understand your options.
DISCO clients have access to a variety of techniques to find the signal from the noise. For example, email threading reduces time spent on the repetitive task of sorting through emails by grouping email chains together for easy review — including when chains break into new threads so you can review only the versions that contain differences without losing the context of when certain people were added or dropped from the email. Similarly, DISCO AI can provide tag predictions and uncover documents most likely to be relevant during structured reviews.
“Thanks to DISCO, our team has been able to get to work to try to get justice for the cities and counties of Texas that are dealing with the impacts of this opioid epidemic. DISCO’s platform helps us work smarter for the clients.” - Mikal C. Watts, founding partner of Watts Guerra LLP.
Receiving a production is a bit like starting a jigsaw puzzle — all the pieces are there, but sorting the utter disarray into something cohesive requires a thought-out plan and a good amount of digging. However, the right tools and strategies can help everything fall into place a lot easier.