In a lawsuit, discovery is the period during which parties to the suit gather evidence from each other and from other sources that may be relevant to the case. This process involves exchanging and reviewing relevant documents, interviewing witnesses, and taking depositions. The purpose of discovery is to allow each side to fully understand the facts of the case and to prepare for trial.
Traditionally, discovery has been a document-heavy process during which parties to a case pore through millions of paper documents to uncover key evidence. This characterization exists because it is largely accurate.
We’ve seen countless television shows where junior associates spend day and night reading through an unending stack of files and folios stuffed with papers–and for a long time, the discovery process was exactly that. While most of these documents have moved to the cloud, their importance remains critical to any matter at hand, and given that most lawsuits don’t make it to trial, document review and discovery is often where cases are concluded.
As such, the length of discovery in a lawsuit can vary significantly by case, as it depends on the main sources of information that need to be presented and “discovered.” The biggest source of discovery in a case are documents. But while time-consuming, cost-intensive discovery processes are still common, advancements in legal technology are making it easier for legal teams to find key evidence, as quickly and accurately as possible, with increased efficiency, efficacy, and budget predictability.
Let’s dive into how discovery documents are reviewed and look at the other components of discovery in a lawsuit.
Document Review Timelines
Document discovery can easily take several months or more. Having the right technology can help.
Document review is the process of identifying, collecting, and analyzing documents and other forms of electronically stored information (ESI) that are relevant to a case.
This is undoubtedly the most time consuming and critical task in discovery.
Traditionally, discovery has been a document-heavy process during which parties to a case pore through millions of paper documents to uncover key evidence. This characterization exists because it is largely accurate.”
As the scope and size of electronically stored information (ESI) continues to explode, with data stored not just in emails and traditional ‘documents’ but Slack chats, Trello boards, and even Apple Watches, discoverable data can be any and everywhere. Therefore, collecting this data is critically important and merely looking at emails and scanned documents is no longer sufficient. ESI has moved to the cloud, and hence finding efficient ways of collecting and uploading this data to a discovery platform is critical for legal professionals to ensure they’ve collected all discoverable data for review.
After that, this data needs to be processed. Raw data can be noisy.
Native files–such as an email–need to be unpacked so that the attachments are ingested on to the platform and the metadata from these records needs to be extracted, preserved (retaining its original values), and normalized (or standardized, so that all dates are in the same format, for example). This would allow a user to search all files–emails and attachments–to find relevant information.
Once processed, these files typically need to be culled. A common discovery procedure is to collect broadly, capturing as much data as could possibly be relevant, then to narrow that down to key files by culling within your ediscovery platform.
Industry-standard review times still come in around one document per minute. Better review platforms can certainly improve speed without sacrificing efficiency.”
Common ways documents are culled include:
Deduplication: removing identical and nearly identical documents
DeNISTing: removing files that don’t contain user-generated content
Date filtering: only including documents from a certain time frame
Parties: only including or excluding key individuals and organizations
Search terms: only including documents that contain certain keywords or satisfy certain criteria
Once collected and processed, these documents and the data they contain ultimately need to be reviewed. This part of the document review process can be particularly time consuming as legal professionals go through these data sources to uncover critical evidence. Evidence can lay buried under mountains of mundane and unresponsive information irrelevant to the case, but it must be found.
Timelines for document review can vary significantly based on the volume and complexity of the documents, the number of reviewers involved, and the review platforms utilized. On a per-document basis, industry-standard review times still come in around one document per minute for a first pass review. Better review platforms can certainly improve speed without sacrificing efficiency, by front-loading the most likely-to-be-relevant documents via technology-assisted review. Efficiency benefits can also come from quick coding or bulk coding of documents and tools that simply operate quicker and more intuitively than legacy platforms.
Users of early case assessment in Everlaw were able to reduce the documents in active review by 70% in 2022.”
But culling down documents, to remove those that plainly do not merit eyes-on review, is often a key strategy to reducing review times.
Time and cost savings here can be massive. For example, users of early case assessment in Everlaw were able to reduce the documents promoted to active review by nearly 70% in 2022. For a document corpus of 1 million docs, that’s an easy, quick, defensible, and cost-effective elimination of nearly 700,000 documents at the onset of a matter.
The right ediscovery platform can impact this timeline by providing advanced analytics and visualization tools to help make sense of the disparate data that every case contains. Tools such as concept clustering and data visualization can significantly speed this process by surfacing important themes in a document corpus and provide investigators a sense of the key players in their cases without going through thousands of lines of communication.
Conducting depositions can take weeks, depending on their number and complexity.
Another core element of the discovery process is depositions. Depositions are out of court statements given under oath by people involved in a case.
They allow parties to know in advance what witnesses may say at trial and can be used to further a case or by the opposing side to discredit a case in cross-examination. They are usually used at trials or in preparation for trials, and may come as written transcripts of videotaped depositions.
Each party can include up to ten depositions in advance of its case, and federal law requires each deposition to last no longer than 7 hours. Depositions require careful preparation and coordination, and the timeline to execute depositions can vary significantly based on the complexity of the issues and number of deponents.
Interrogatories save time, but the hours needed to respond to them will vary based on number and complexity.
Interrogatories are related to depositions in that they allow either party to submit written questions to the other party. Interrogatories can speed up litigation by allowing parties to respond to questions in writing, establishing key facts without the need for document discovery or depositions. The answers to these questions are required, and must be submitted under oath and according to the case’s schedule. Since attorneys usually help their clients answer interrogatories, these responses tend to be more finely crafted than answers to deposition questions.
The responding party gets 30 days to serve its answers or raise objections after being served with an interrogatory. Some may be simple and easy requests, while others can be more complicated and nuanced. The number and complexity of interrogatories can significantly impact the timelines of completion, and therefore the process of discovery in a lawsuit.
Taking Control of Discovery
It is no secret that discovery can be a long process, and an expensive one. Collecting, processing, reviewing, and producing documents can take months or even years, and significant case law has been written just on the domain of document review and search terms. As data continues to grow more complex and timelines feel like they’re getting shorter, discovery is bound to become more complicated. Document review combined with depositions and interrogatories can therefore become cumbersome to manage and prohibitively expensive, making justice a luxury a small few can afford.
Discovery can be a long process. But there are ways to uncomplicate this process, while making it more efficient while delivering greater value.”
However, there are ways to uncomplicate this process, while making it more efficient while delivering greater value. The right ediscovery platform can provide legal professionals with critical tools to gain direct access to their data and cull their cases efficiently. Predictive coding, concept clustering, and data visualization are critical to making the discovery process shorter and more efficient.
Similarly, an end-to-end ediscovery solution can provide not just data ingestion, processing, review, and production capabilities but also tools to integrate reviewed information and documented depositions to build narratives and prepare cases.