Estimated reading time: 4 minutes
by Josh Taylor
Smart document discovery means knowing your case inside and out before the documents start trickling in.
It’s been quite a while since the last installment of our Guide to Investigative Data series, but the new year (especially one that’s not 2020) is the perfect time to change up your habits and deploy new legal research tools and techniques.
In Part 1, “Gathering Data on Your Client,” we talked about knowing your client better than they do (or at least better than they want you to in certain instances). This time, let’s stop spinning our wheels in the seemingly endless bog of court-controlled discovery and get information long before the other side has to give it to us.
Dismantle your typical document discovery processes
If you’re anything like me, discovery in a case is a source of dread and disgust. Fighting about what you know or are being allowed to know by the other side is often depressing and slow. You agree on your schedule and have the court approve it, then exchange overly broad and often silly document requests and interrogatories. And it all culminates in absolutely nothing when you get a response back that simply objects to your requests. Discovery is a game and is often the source of the most stress — and opportunity for ethics sanctions — in practicing law.
So what if you knew exactly what you were looking for even before writing your requests? And what if you knew which documents were problematic before you received the opposing side’s requests?
Using an investigative data search platform like Tracers can help you be smarter about document discovery, from initial requests for production and interrogatories to knowing exactly what to look for, and where, when documents are produced.
Investigative data searches
Investigative data searches — whether it’s an asset search or criminal records — can provide at most a smoking gun and at least a basis from which to draft sufficiently narrow discovery requests that cannot be easily objected to by the opposing side. When you know what you’re looking for, you also know what might be missing from a document production.
For example, in a family law divorce matter, it would be helpful to know about certain assets registered in one party’s name. When you run an asset search, you can then tailor discovery around uncovering everything there is to know about those assets. Likewise, in a business dispute, it would be helpful to know what other businesses are owned or controlled by the same folks you are litigating against, for both damages or corporate veil purposes. You can use an investigative data search platform to dig into a business and its managers, members and owners.
Knowing what you’re looking for before going into discovery also educates your steps following discovery, such as moving to compel the production of items potentially withheld from your side. Knowing what you’re looking for reveals the holes in what’s provided.
Focus your document review team
Your document review team is the most important part of your discovery process. Investigative data is key to focusing that team on the most important aspects of your case. Whether preparing to make a production to the other side or reviewing what’s come in, investigative data matters. Running searches based on your case’s potential issues will give you a framework on which to build a review protocol. Make sure your team is keyed in on certain assets, topics and associates when looking through documents.
The only thing worse than discovery is blind discovery
Instead of going into discovery expecting to learn your case, you can go in knowing what documents you are looking for and what potential topics the opposing side might key on for your own client and document production.
Tailoring your requests and reviewing protocol appropriately will save your client time and money. One of the best ways to do that is to educate yourself and your team on what might exist by running searches in investigative data platforms.
Taylor, J. Lawyer’s Guide to Investigative Data, Part 2: Using Investigative Data Platforms for Smarter Document Discovery.
Attorney at Work Web site.
Published 2021. Accessed Mar 4, 2021.