Kilies: Discover a way to avoid the document dump

Kilies

By Janelle Kilies

You’ve been here too many times before.

In response to your requests for production, the opposing party produced thousands of pages in the style affectionately referred to as a document dump. Uncategorized, or, at best, loosely categorized. You’re frustrated. You start thinking about the demand you’re going to submit for the opposing party to more neatly produce their documents. But then you realize that, often, you produce documents in the same way. More importantly, you know that your client won’t appreciate receiving a bill with hours spent on a petty discovery fight. So, you relent, moving on to causes worthier of your frustration, like the taste of the office coffee.

 The good news is, with all the technological advances out there, there’s a solution. (To document production, not office coffee.) In a case where lots of documents are expected, an online platform can be used to exchange some of them. Given the time and expense associated with the discovery process, we must find creative ways to make the process less burdensome. At Lewis Wagner, we’ve used an online platform lately in document-intensive cases and have found it very useful. The parties agree on categories of discoverable documents.

Take a multiple-plaintiff product-liability case as an example. The product manufacturer usually needs the following categories of documents from each plaintiff to evaluate the claim: proof purchase for the product at issue; medical records and bills; photographs of injuries; and documents regarding out-of-pocket expenses. The plaintiffs’ attorneys generally want purchase history information and communications between the product manufacturer and their clients. You get the point. These categories will vary from case to case.

After the parties have agreed on the categories of documents subject to exchange on the platform, each party receives a username and password. The number of users, and who is a user, is in the party’s discretion. In mass actions, it is not uncommon for our opponents to give their clients direct access to the platform. Then, user-plaintiffs can upload documents to their corresponding category. The party’s attorney must approve an uploaded document before it is shared with adverse parties. You can see why a plaintiff’s attorney may give her client direct access to the platform. The plaintiff could upload her proof of purchase to the platform, and the attorney can review the document before it’s produced. Time saved. Once a party’s attorney (or other designated representative) approves a document, it is instantly available to the other parties, and it appears in its designated category. More time saved. And, no more document dumps.

 Parties can customize their platform to suit their case and their agreement regarding what’s discoverable. This has been incredibly useful in mass actions, where each plaintiff has her own tab: Jane Doe’s proof of purchase, photographs, etc. are easily accessed and, once accessed, well organized. Additionally, because the platform is effectively a database, users can run queries on the data. This has come in handy in several recent cases. For example, in one mass tort where the parties agreed to use an online platform, the parties were able to review the information on the platform and categorize each plaintiff by severity of injury. (The agreed-upon categorization was a data field in the platform itself.) After that categorization, the parties were able to select similarly injured plaintiffs for a bellwether process. In a different case, the parties agreed that any plaintiff who purchased the product after a certain date was subject to mandatory arbitration. On the platform, the date-of-purchase search could be run in an instant. Without the platform, that search probably takes a ton of instants. Again, time saved.

Lewis Wagner works with Litigation Management, Inc., to construct these online platforms. Our firm and our clients have been pleased with the results. The potential for saving time and money is obvious. You will work more efficiently during your initial review of a document production, and you will more easily locate certain documents, buried among thousands of others, later in the case. Maybe less obvious is that using an online platform like this encourages collegiality among parties. It starts an early dialogue that probably ends in an agreement. We could all use a little more of that.•

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• Janelle Kilies is a senior associate in Lewis Wagner’s complex litigation group where she concentrates her practice in the defense of mass torts and consumer class actions. Janelle has litigated product liability, consumer fraud, false advertising, and deceptive marketing claims. The opinions expressed are those of the author.