Remember the child’s card game Go Fish? You know the one, where each player keeps their own cards secret and tries to guess what cards the others have? You try to get all four of the same rank cards. One player asks another if they have a certain card, such as: do you have any Kings? If that player has any Kings, they have to give them to the requesting player. If not, they say: Go Fish, ha ha, you did not guess right, and then it is the next players turn. (By the way, this game is typically played by very young children.) Based upon the requests one player makes, the other players guess what cards they want. They then try to discard those cards in such a way that the player cannot get to them. The whole enjoyment of the game is derived from not knowing for sure what cards the other players have and from keeping your own card-seeking goals secret. It can take quite a while to guess right and get all four suits of the same rank card. The game goes on until one player wins by only holding four-of-a-kind cards. The game is usually won by the person who is the lucky guesser. There is, to put it mildly, not much skill involved, which is why young kids love the game and older kids don’t.
Most Lawyers Do Search as if it were a Game of Go Fish
I submit that the negotiated key word search model prevalent in e-discovery today uses the same guessing game model as Go Fish. The party requesting ESI guesses what key words might produce evidence to support their case. Do you have any emails that use the keyword “King.” It is necessarily a guess as to what keywords to use because the requesting party cannot see the responding party’s cards. Only the responding party sees all of their own cards, and that is as it should be.
The responding party has a right to privacy. They should not be required to give the requesting party the keys to the server room, the whole deck of cards. The requesting party is either suing the responding party, or being sued by the responding party. Either way, the requesting party should not be permitted to enter and search every nook and cranny of their adversary’s inner sanctum. They should not be granted unfettered access to run ever-more-sophisticated search tools to look for something, anything, that might be incriminating. That kind of fishing expedition has long been prohibited by most courts in the United States. See eg.: Omnicare, Inc. v. Mariner Health Care Management Co., 2009 WL 1515609 at *3 (Del.Ch. May 29, 2009); Hedenburg v. Aramark American Food Services, 2007 U.S. Dist. LEXIS 3443 (W.D. Wash. Jan. 17, 2007). The advances of technology should not be permitted to change that rule. No, the rule must remain, but the game itself should change.
The way the game is now often played, the requesting party also keeps their secrets. They do not want to reveal exactly what it is that they are looking for. But this is, I contend, not as it should be. The requesting player is misusing the paper-world work product doctrine to hide their true discovery intentions. They accomplish this by using broad, general requests. That keeps secret what they really want. They claim a work product right to do so to protect their mental impressions and case strategy. Then they go after what they really want by playing the key word guessing game, both before and after the production. Not all requesters play this way on purpose. This explanation assumes that they have done their home work. It assumes that they know what the issues are and what evidence they need to prove the issues. It assumes that they know what they want, which, for some practitioners, is not always true. Some practitioners have no idea what the real issues are and what they are looking for.
Regardless of the reason for the requesting party’s non-disclosure, this system of discovery by guesses on effective keywords is a model of inefficiency. It may be fun to the players involved, some of whom may reap huge fees in the process, such as the responding party’s lawyers and vendors. It is not, however, designed to get the right cards on the table in the quickest and cheapest way possible. Quite the contrary – it is designed to stretch out the process in an iterative series of negotiated key words and searches. This process involves as much chance as skill.
This kind of approach to the pursuit of truth to attain justice is unreliable and inefficient. The process not only takes too long, the many bad guesses on keywords create a vast quantity of false hits. In the world of information science, that is called poor precision. A ninety percent miss-ratio is not uncommon. That is, for every ten documents that contain the specified keywords, nine are irrelevant, and only one is relevant. This 10% precision rate necessarily results in a tremendous waste of reviewer time. The irrelevant documents retrieved by the search are called false positives. The responding party must then spend a small fortune to screen the many false positives for relevance and privilege.
The Go Fish approach also misses many relevant documents. In the world of information science this is called a poor recall rate. The relevant documents not found are called false negatives. Again, a recall rate of only twenty percent, where eighty percent of the relevant ESI is missed, is not uncommon. This raises questions of the fairness of the process. Can justice be served when only 20% of the relevant ESI is located?
We Need a New Game
We must redesign the game of e-discovery search as it is now commonly played. We should design a new game where the responding party picks the search methods, not the requesting party. In this new game the goal is speedy, just and inexpensive discovery. Get the right cards on the table in a quick, fair and efficient manner. With this goal in mind, it is obvious that the cards should be picked by the person holding them, the responding party. The responding party should design the search strategy, not the requesting party. It is, after all, their hand, and so they can see for themselves what search procedures and terms will work or not.
In order for this new game to work, the responding party needs to know what the requesting party is really looking for. What cards do they want? They might be able to find them, but not if they do not know what they are looking for. Thus, for example, if the goal is to find all deuces, then the requesting party should specifically say so, rather than request all cards that are less than 5. Thus, in this new game the requesting party must show their hand first, they must explain what they need and why. Both sides need to discuss and narrow the issues and be frank and open about discovery. Then the responding party can then look at their own cards and see which are responsive to the defined issues. This approach is consistent with the goal of this new game: both sides work together to find the cards that the requester wants and get them on the table as fast as possible.
This new game can only work if the search is controlled by the responding party. It is, after all, their data, their IT systems, their data custodians, their employees, their agents, their attorneys, their language, their retention policies, their retention practices, etc. The responding party is not blind like the requesting party. They are in a far better position to design the culling and search strategies, including key words. They are in a far better position to find the information that the requesting party wants. They will know how to find all of the number 2 cards, assuming they have any. The responding party may still find nothing and say Go Fish. But the process will be much faster and less expensive than iterative Blind Man’s Bluff keyword negotiations.
The game as played now forces the blind man to make hundreds of guesses at a time, hundreds of key words, hoping that a few might be right. This hurts the respondent who has to review all of the junk generated by the blind guesses. It hurts the requester too, who eventually has to review all of the relevant and marginal calls. It is a colossal waste of time. It is inefficient even if the requester is given several guesses, not just one, and does some refining and talking in between the turns. That only makes the process slightly less wasteful.
Bottom line – we need to stop fooling around with search in e-discovery. That means taking the blindfolds off, but more fundamentally, it means redefining the goals of the game of discovery itself. All too often the goal of discovery today is to try to take your adversaries secrets, but keep your own. Lawyers try to win a case by discovery. Perhaps because they have so few trials, they lose track of the fact that discovery is not supposed to be an end in itself. It is just supposed to be a preparation for trial.
Trial is the time and place for the adversarial process and arguments, not discovery. Many litigators today forget this. They focus instead on a game where they try to only show their good cards, the ones that support their positions. Conversely, they try to keep secret all of their bad cards, the ones that undercut their positions or support the opposition’s positions. For them the goal of discovery is to put only their good cards on the table and keep their bad cards face down in the discard pile.
Today’s paradigm of negotiated search terms perpetuates that adversarial discovery model. It encourages feigned cooperation where each side secretly hopes that the other side will guess wrong. For if that happens, and bad search terms are picked, they will not have to show their bad cards. They can manipulate and hide the truth.
The New Game of Discovery is Won when Completed with Enough Money Still Left for Trial
This perverse game of selective disclosure might have worked in the paper world (although that is debatable), but it no longer works now. We now have a Saganesque number of cards – billions and billions. No one can afford to play this game any more. It should be obvious by now that if you play this game, you will quickly run out of time and money for the real game – the true purpose of litigation – a trial on the merits. How else do you explain a 96% settlement rate in federal court? Yes, trials are expensive. But if discovery were to cost less than it does now, perhaps far less, then there would be adequate resources remaining after discovery to conduct a trial.
Under the new cooperative based, producer-search-driven discovery here proposed, the trials themselves would also become simpler and more streamlined. If lawyers did not play the old games of truth manipulation, and just let the chips fall where they may, many unnecessary side issues would fade away before trial. When bad facts come out early, pseudo-issues go away early too. This inevitably results in fewer issues remaining for trial. Thus if discovery was changed as here recommended, the cost of trials could also be reduced.
The new goal here proposed for discovery is to find and place all of the important cards on the table as quickly and efficiently as possible. This requires cooperation and transparency on both sides. It requires the requesting party to explain what cards they want and why. It also requires them to make precise and narrow requests directed to specific, important issues in the case.
This new game also requires cooperation and transparency by the responding party, moreover it requires their initiative and leadership. The responding party can no longer just sit back and watch poor guesses being made. They must take the lead in getting the truth out. This is a burden, but the responding party is more than compensated for this burden by the protection this provides from over-broad, expensive, inefficient search. It also protects the responding party from having to show their whole deck of cards, their entire ESI collection. The protection of privacy rights is an important factor to many.
The party responding to requests for production must be proactive. They must design the search. As discussed, this only makes sense because it is their data. They have unfettered access to it. They know the language. They know the people involved. For these reasons, the responding party is always in the best position to search the data and, if asked, to fully explain how and why the search met the needs of the requesting party. The process must be transparent. It must also be performed competently. This may sometimes require the employment of experts and search design specialists.
Once the cards responsive to the request are found, they all have to be disclosed, the bad as well as the good. The only exception is privileged documents, which are logged. Honesty and good faith are critical in all discovery processes.
The process may still sometimes be iterative. A careful study by the requesting party of the ESI received may lead to new goals, new issues, and new more focused requests. But still, two fast, focused searches beats one long, over-broad search any day.
This is a new discovery game where both sides win if they complete discovery on time and under budget. This is restrained discovery where the parties only search for the facts they really need. This is discovery where all of the facts are freely disclosed, not just the ones that help your position. This is discovery that typically ends when the budget is exhausted, not the attorneys. For we all know that attorneys are hard working and capable of billing a mind boggling number of hours. These long hours will end in this new game because attorneys will no longer have to try to shape the truth. They will instead cooperate to put the truth on the table. They will save their arguments for what the facts mean under the governing law. This is cost-conscious, proportional discovery where, once completed, sufficient resources still remain for a trial on the merits.
This new game of discovery that I propose, along with many others, is designed for trials, not perpetual preparation. It is a model for those who want to fish, not just “cut bait.” It is a model for all true trial lawyers.
The new rules proposed here apply equally to plaintiff and defendant. Discovery is and will continue to be a two-way street. Both parties will have to find the cards that the other side is looking for. Then, they must put their cards on the table; good, bad or indifferent. If the cards do not exist, and this may happen often, the producer will have to explain exactly what they did. They will also have to remain open to additional searches.
I propose that producing parties always take the lead in the search of their own information. This does not mean that the requesting parties should do nothing and just accept with a smile whatever is handed to them. They will have a seat at the table. They will be heard, but clairvoyance will not be required. I propose a collaborative, transparent process where unnecessary application of the work product doctrine is curbed in favor of efficiency.
Indeed, although the responding party can see-all and thus must lead the search, the requesting party should always still play a key role. First of all, they have to fully describe what their Waldo looks like. In discovery each issue has its own Waldo and its own ideal search methodology to find him. There are recurrent patterns, especially where the responding party has gone through the drill many times. Yet there is rarely a one-size-fits-all search strategy, any more than there is a one-size-fits-all legal strategy.
The requesting party can, if they wish, make more contributions beyond describing their Waldos. The producing party may seek their advice. The requesting party may sometimes have far greater search expertise. Even if they do not, they may still have some good ideas and be able to contribute to the search process.
A leader with vision does not mean a dictator, nor does it imply blind obedience. The responding party should lead, but should also explain everything they did, or plan to do. They should be willing to answer all questions and to ask questions. They should be willing to listen if the other side has something to say. They should be open to constructive suggestions.
If the requester is not cooperative, the responder should also be willing to assume risks. The responding party should be ready and willing to go on their own if need be. They should be ready to explain everything to the supervising judge. The judges can help make this new game work, especially in circumstances of an uncooperative requester. The courts can do this by affirming all reasonable search efforts, absent only a showing of bad faith.
This new game is not a competitive game where one side wins and another loses. Either they both find Waldo or they both lose. The win-lose part of the process comes next. It comes after discovery when the case is decided by summary judgment or tried before a judge and jury. That is the way it should be. Neither discovery nor mediation are adequate substitutes for adjudication.
The new game of discovery here proposed implements strategic cooperation. In this way we can regain our adversary system of justice. We can start doing trials again, instead of playing endless rounds of Go Fish.
I look forward to your comments and help in flushing out the details of this proposal. Please leave a comment below. This is just the beginning. No doubt I have missed some issues and may have gotten a few wrong. What do you think?