The document dump is still a common practice in Small Firm eDiscovery. At its most basic, it is the practice of sending opposing counsel as many files for review as possible close to the start of a trial. But today, the data dump can actually provide an advantage to the receiving party. Unlike the paper world, where large law firms often had to throw teams of attorneys at a document-review project, technology levels the playing field down to one person and a computer. For small or straightforward cases, small-firm lawyers are learning they can manage the discovery and review of gigabytes of data themselves.
Blowing Up in Their Face
It’s becoming increasingly clear that the data dump is bad strategy. In a recent dispute over control of a North Carolina business, Blythe v. Bell, the defendants produced 3.5 million documents on two hard drives. The computer consultants hired to conduct the search “had never provided any forensic computer services in the context of a lawsuit,” and produced 3.5 million documents without making an effort to organize or review the collection. Worst of all, they did not even screen for privileged information. The defendants complained this was nothing more than a digital document dump and asked for court relief. The court agreed, and as punishment, the defendants had to waive any claim to privileged documents. Now the plaintiffs not only have millions of potentially valuable documents, but they have all of the opposing party’s legal strategy in hand.
Crushing Opponents With Their Own Data
The document dump is doomed because technology exists to manage large volumes of data. Prior to review, parties should deploy de-duplication and de-Nisting technologies to eliminate redundant and unnecessary files. Other culling techniques to use include simply searching collected data by date range or other file-type limitations. Although considered routine, these culling methods can still become sources of contention. Always document the use of any culling methodology.
Also, know where the review process might break. In particular, what areas opposing counsel might challenge your search. Tasks that can often be challenged include extracting email and attachments, decrypting and extracting data, and the preparation of load files for use in review platforms. One case to note that covers much of this ground is J-M Manufacturing Co., Inc. v. McDermott Will & Emery.
In the Blythe v. Bell case cited above, the producing party apparently thought they could overwhelm their opponents by dumping millions of unorganized and seemingly unusable documents. But now, after dumping all that data, the receiving party not only has millions of documents from which they can find the evidence necessary to win the case, they also have all of the defendant’s privileged information, which they are now free to review and use in court. When that happens, it’s not uncommon to see a quick settlement once it’s clear that the producing party’s strategy has blown up in their face.
For more information, you can also download our free eBook for eDiscovery in solo and small firms called, “Leveling the Playing Field.”