Look, litigation is expensive.

It’s no secret that ESI has ratcheted up that cost big time. Those of us who eat, sleep and breathe ESI know how to do things more effectively for less money.

Here’s the thing.  You can do it better too — but you have to want to, and you have to make some changes to how you do discovery now.

Cost-effective eDiscovery requires a completely different approach to discovery than we’ve done in the past and you have to get on board. 

So, here’s my money saving tip for today — Spend your time and money thinking about and looking for The Money Documents.

What are The Money Documents, you ask?

The Money Documents are the ones that make or break the case — they prove the most valuable claim you have OR make the best defense.

Whatcho talkin’ bout Willis?

Come on, man.  You know.

Think the report showing the bean counting that was done and buried to hide the known flaw in the Ford Pinto that made the gas tank explode in the movie Class Action, or that one email showing the detective knew a fact that made the charges bogus from The Good Wife. Sure, those are examples from TV and the movies, but real life isn’t all that different. There are always 1 or 2 make or break the case documents.

It doesn’t have to be a memo or a report — it can be the picture of the plaintiff claiming disability climbing a 14er from his Facebook page (that’s a really tall mountain for you non-Colorado folks), or a tweet that shows the company knew what they now say they didn’t know.

What The Money Documents are will depend entirely on your case.

The movie Class Action (a classic for the litigator in you) was based loosely off of the litigation surrounding the design of the Ford Pinto. Basically, a design flaw in the gas tank meant that if another car hit the rear of the Pinto in just the right place, the gas tank would explode. And it did, many times, which is what led to the litigation.  In the movie version, Gene Hackman, who plays the auto manufacturer’s counsel from a large law firm, knows the report exists showing that the manufacturer knew about the flaw and installed the tanks anyway, but he buries it in boxes upon boxes of documents and sends the 18 wheeler full of boxes over to the solo plaintiff lawyer’s office. Then he sends him an index of the documents with it buried in the boxes who knows where. The lawyer can’t find it, so she finds the scientist who wrote the report instead.

That report is The Money Document in that case.

eDiscovery can be the same as that 18 wheeler loaded to the gills with boxes of documents. You receive gigabytes or terabytes of data that you have to sift through, and because it’s electronic, you have no idea how to do it.

It’s the same for the party producing it as it is for the receiving party.  We are wasting millions of dollars doing discovery badly because we won’t learn and cooperate.  

And don’t tell me you only have 5 GB and isn’t that easy — one GB of emails printed out is around 75,000 pages. Multiplied times 5 is 375,000 pages.  Are you up for reviewing all of that? On the flip side, do you really want your client to incur the expense of identifying, collecting, reviewing and producing all of that?

Litigation is a strategy game. I know I’ve had cases where we battled like heck to keep the other side from discovering The Money Documents using successful motion strategy. You have to focus on The Money Documents and avoid getting or providing the 18 wheeler full of boxes.

So, how do you find The Money Documents? 

Every complaint has multiple claims in it. If it’s a personal injury case, a plaintiff may throw in the contract claims for good measure, or in any consumer case a smart plaintiff will toss in a violation of the deceptive trade practices act.

Look at the claims in the case you’re working on right now.  What are they?  Where is the money for the plaintiff?  Where is the most liability for the defendant?  If you have a false advertising claim pending against you, and it has any teeth, that could mean treble damages and attorneys’ fees for the other side (depending on the statute, of course). So, The Money Documents in that case might be the thousands of individual social media posts made by celebrities and the company telling the public that the product will make your butt smaller, help you lose weight, stop smoking, be more beautiful, stop your car from skidding on the snow, etc.

What if every single one of those social media posts constituted a separate violation of the deceptive trade practices statute?  Can you hear the cha-ching, cha-ching?  Because I can.  That’s the money ringing up.  And if you’re defending the company, you better think about that cha-ching BEFORE the plaintiffs do.  How do you do that?  Think about The Money Documents.

In a commercial case between two sophisticated defendants is the issue that turns the case a legal question?  If so, how much discovery do you really need?  Sure, you need to preserve the email.  But do you need to spend tens of thousands or hundreds of thousands of dollars reviewing it all before the legal question is decided?  Think about taking a phased approach to the litigation — putting off discovery until the court resolves the question.

Our discovery rules are structured to allow for the discovery of information that might lead to admissible evidence. (Note that will change under the FRCP in late 2015.) So, if plaintiffs ask for the 18 wheeler, most of the time, they’ll get it and the defendant has to pay for it.

I’m telling you it’s a waste of time and money for the plaintiff to ask for that truckload of data, and for the defendant to provide it. I’m advocating for BOTH sides to sit down individually and then together and really talk about what is needed.  If both sides look at what they’ll spend to do the traditional “ask for and get the moon” approach and actually understand what that means financially, they’ll back off.  

Let “Show me the Money” be your mantra, plaintiff OR defense.

Think about what’s needed, where the liability or best case is and build your strategy around an approach that gets you that information. Sure, it’s different for both sides, but you’ll be amazed at what you can save.

Do Better Discovery.