Chess, Not Checkers: Multi-Case Strategies for Discovery

In our last post, we discussed how to balance innovation in AI-driven processes with the human element to ensure a defensible approach to litigation that also maximizes the protection of sensitive data.

We used the analogy of chess vs. checkers in the first post in this series to illustrate the enhanced importance of strategy in managing complex litigation. That importance is magnified even more when addressing discovery for multi-case scenarios, which typically involve more data, more data types, and many more parties to the litigation. In this post, we will discuss ten strategies for multi-case discovery.

Ten Discovery Strategies for Multi-Case Scenarios

Strategic approaches for eDiscovery in complex scenarios including factually similar cases, class-action lawsuits, and multi-district litigations (MDLs) require an elevated level of planning and execution. Here are ten strategies to optimize discovery for these complex scenarios:

Centralized Data Management

Taking a centralized approach to data management can ensure efficiency and consistency in a complex litigation scenario. This includes:

• Creating a Central Repository: A secure, centralized repository for storing and managing data, enabling streamlined access, and reducing the risk of errors or duplication.
• Data Deduplication: Implement deduplication tools as early as possible to minimize redundant data.
• Standardization: Standardize the format for collected, processed, and reviewed data to create a cohesive framework that simplifies collaboration and enhances workflow efficiency.
• Reusability of Data: Leverage previous work product and insights, such as coding decisions, privilege determinations, and other review outcomes, to save time and resources when addressing repeating claims.

Consider these mechanisms to reduce the time and resources needed to manage disparate datasets so that your team remains agile and prepared for the complexities of multi-case scenarios.

Technology Utilization

Not surprisingly, technology can play a vital role in managing the complexities of eDiscovery for multi-case scenarios. Technology options include:

• AI and Advanced Analytics: Utilize advanced tools like AI and machine learning to streamline the identification of relevant data through predictive coding and clustering, significantly reducing the time and cost of review.
• Integrated Cloud-Based Solutions: Leverage integrated and scalable cloud-based solutions to support collaboration among geographically dispersed teams, provide secure access to data and eliminate manual handoffs between workflows to improve efficiency and reduce mistakes.

Together, these tools and strategies enable legal teams to handle complex discovery requirements with greater speed, accuracy, and cost-effectiveness.

Establishing Protocols and Consistency

It’s important to establish consistent protocols to ensure efficiency and uniformity in eDiscovery in complex litigation. Develop standardized protocols for data collection, production, and privilege logging to streamline processes and minimize disputes, especially in MDLs where multiple jurisdictions may be involved. Align document retention policies with litigation requirements to ensure data preservation, especially when numerous parties and cases are involved. Once the litigation begins, it’s typically too late to put these into effect.

Collaboration and Communication

Effective collaboration and communication are crucial in multi-case scenarios. This includes working closely with lead counsel, co-counsel, and opposing parties to avoid redundancies and disputes over eDiscovery practices, engaging courts at the outset to establish protocols for discovery scope, search terms, and production formats to avoid delays, and coordinating with service providers early to ensure they understand the scale and complexity of the cases.

Efficiency in Review and Production

The importance of being efficient in review and production is magnified in complex litigation where multiple reviews and productions are more likely. Increasing efficiency includes:

• Prioritize Key Custodians and Data Sources: Focus the review on the most critical information first to establish the parameters around responsiveness early in the process.
• Use Review Teams Strategically: Using specialized review teams for different aspects of litigation allows for targeted expertise, improving accuracy, and reducing time spent on irrelevant materials.
• Batch Production: To facilitate timely production, consider rolling productions of manageable batches to allow for continuous review and feedback by all parties.

By implementing these strategies, legal teams can accelerate the discovery process, maintain high standards of accuracy, and better manage the demands of complex, large-scale litigations.

Cost Control

eDiscovery costs in complex litigation can escalate much more quickly without tight controls. It’s important to consider:

• Budgeting and Forecasting: Develop detailed budgets, incorporating potential costs for data collection, processing, hosting, and review.
• Cost Sharing: Explore cost-sharing agreements in MDLs where appropriate.
• Metrics and Reporting: Regularly review progress and costs against established benchmarks to identify and address inefficiencies.

Maintaining a clear focus on financial management is key to optimizing resources while maintaining the defensibility of the eDiscovery process.

Addressing Privilege and Confidentiality

Privilege and confidentiality disputes in complex litigation are much more common than they are in typical litigation. Minimize them by:

• Privilege Review Automation: Use AI-assisted privilege review tools to streamline the identification of privileged documents, enhancing accuracy and reducing manual effort.
• Redaction Best Practices: Implement automated redaction tools to ensure consistency and efficiency in protecting privileged and confidential information.
• Clawback Agreements: Obtain a Rule 502(d) order from the court to safeguard against inadvertent disclosures by allowing the return or destruction of privileged materials, not just in the current case, but in any other case involving those materials as well.

These measures help legal teams manage sensitive information effectively while maintaining compliance with legal and ethical obligations.

Strategic Use of Experts

The use of experts in complex litigation requires a comprehensive strategic approach. Experts can include:

• Technical Consultants: Involve eDiscovery experts to guide decisions on scope, methodologies, and technology to streamline processes while maintaining defensibility.
• Data Scientists: Leverage data scientists to analyze complex datasets and identify patterns.
• Forensic Investigators: Confirm the integrity of the data sets.

The specialized knowledge of experts enables legal teams to navigate eDiscovery in complex litigation with greater precision and confidence.

Proactive Risk Management

Risk is inherent in complex litigation, so it’s important to manage risk proactively, focusing on safeguarding sensitive data and complying with legal and regulatory requirements, like GDPR. It’s critical to maintain detailed audit trails to ensure transparency and defensibility throughout the process. Being proactive regarding risk enables your team to handle eDiscovery with greater confidence, minimizing vulnerabilities and securing the integrity of their workflows.

Tailored Strategies for Class Actions and MDLs

While most of the other strategies can apply to some degree to any litigation, there are tailored strategies specifically for class actions and MDLs, including:

• Aggregation of Claims: Identify overlaps in claims early to consolidate discovery efforts.
• Coordinated Leadership: Develop coordinated leadership structures within MDLs to minimize duplication of efforts and promote efficiency in managing large-scale discovery tasks.
• Early Data Mapping: Conduct early data mapping to help determine where relevant information resides and identify potential gaps, ensuring comprehensive data collection.

By aligning discovery strategies with the unique demands of class actions and MDLs, your team can efficiently manage vast datasets, control costs, and enhance the overall effectiveness of your eDiscovery approach.

Conclusion

The complexity of multi-case litigation requires a well-thought-out strategic approach. Applying these ten strategies can significantly enhance the efficiency, defensibility, and cost-effectiveness of discovery across multi-case scenarios.

In our next post in the series, we will discuss negotiating ESI protocols from a position of power in complex litigation.

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