Few things are more ominous to a company’s in-house counsel than the prospect of facing thousands of individual lawsuits across 30-40 jurisdictions, alongside various other companies in a multi-district litigation (MDL) proceeding. In-house teams can, of course, lean on the expertise of external law firms that have strong backgrounds in MDLs. However, even for experienced law firms, coordinating an individual company’s legal defense with other law firms and in-house counsel within a joint defense group (JDG) can be a Sisyphean task.
But this coordination is integral to achieving the best possible outcome for each company, especially when it comes to identifying and sharing the documents that will drive the JDG’s litigation strategies. An MDL can involve millions of documents, emanating from multiple companies and their subsidiaries. Buried somewhere within that complicated web of data is a small number of key documents that tell the story of what actually happened—the documents that explain the “who, what, where, and when” of the litigation.
Identifying those documents is critical so that JDG counsel can understand the role each company played (or didn’t play) in the plaintiffs’ allegations, and then craft and prepare their defense accordingly. And the faster those documents are identified and shared across a JDG, the better and more effective that defense strategy and preparation will be.
In short: A strong and coordinated key document search strategy that is specific to the unique ecosystem of an MDL is crucial for an effective defense.
Ineffective search strategies leave litigators out at sea
Unfortunately, outdated or ineffective search methodologies are often still the norm rather than the exception. The two most common strategies were created to find key documents in smaller, insular litigation proceedings involving one company. They are also relics of a time when average data volumes involved in litigation were much smaller. Those two strategies are: one, relying on linear document review teams to surface key documents as they review documents one by one in preparation for production, and, two, relying on attorneys from the JDG’s counsel teams to arbitrarily search datasets using whatever search terms they think may be effective.
Let’s take a deeper look at each of these methodologies and why they are both ineffective and expensive:
Relying on linear review teams to find key documents.
Traditional linear review teams are often made up of dozens or even hundreds of contract attorneys with no coordination around key document searches and little or no day-to-day communication with JDG counsel. Each attorney reviewer may also only see a tiny fraction of the entire dataset and have a skewed view of what documents are truly important to the JDG’s strategy. The results are often both overinclusive (with thousands of routine documents labeled “key” or “hot” that JDG counsel must wade through) and underinclusive (with truly important documents left unflagged and unnoticed by review teams). This search method is also painfully slow. Key documents are only incidentally surfaced by the review team if they notice them while performing their primary responsibility—responsive review.
Relying on attorneys from JDG counsel teams.
Relying on individual attorneys from the JDG’s outside counsel to perform keyword searches to find key documents is also ineffective and wastefully expensive. Without a very specific, coordinated search plan, attorneys are left running whatever searches each thinks might be effective. This strategy inevitably will risk plaintiffs finding critical documents first, leaving defense deposition witnesses unprepared and susceptible to ambush. This search methodology is also a dysfunctional use of attorney time and legal spend. Merits counsel’s value is their legal analytic skillset—i.e., their ability to craft the best litigation strategy with the evidence at hand. Most attorneys are not technologists or linguistic experts. Asking highly skilled attorneys to craft the most effective technological and linguistic data search is a bit like asking an award-winning sushi chef to jump onboard a fishing vessel, navigate to the best fishing spot, select the best bait, and reel in the fish the chef will ultimately serve. Both jobs require a highly specialized skillset and are essential to the end goal of delighting a client with an excellent meal. But paying the chef to perform the fisherman’s job would be ineffective and a waste of the chef’s skillset and time.
Both of these search strategies are also reactive rather than proactive, which drives up legal costs, wastes valuable resources, and worsens outcomes for each company in a JDG.
A better approach to MDL preparation and strategy
Fortunately, there is a more proactive, cost-efficient, holistic, and effective way to identify the key documents in an MDL environment. It involves engaging a small team of highly trained linguists and technology search experts, who can leverage purpose-built technology to find the best documents to prepare effective litigation strategies across the entire MDL data landscape. A specialized team with this makeup provides a number of key advantages:
Precise searches and results—Linguistic experts can carefully craft narrow searches that consider the nuance of human language to more effectively find key documents. A specialized search team can also employ thematic search strategies across every jurisdiction. This provides counsel with a critical high-level overview of the evidence that lies within the data for each litigation, enabling each company to make better, more informed decisions much earlier in the process.
Quick access to key documents—Technology experts leveraging advanced AI and analytics can ensure potentially damaging documents bubble up to the surface—even in the absence of specific requests from JDG counsel. Compare this to waiting for those documents to be found by contract attorneys as they review an endless stream of documents, one by one, during the linear review process.
A flexible offensive and defensive litigation strategy—A team of this size and composition can react more nimbly, circulate information faster, and respond quicker to changes in litigation strategy. For example, once counsel has an overview of the important facts, the search team can begin to narrow their focus to arm counsel with the data needed for both offensive and defensive litigation strategies. The team will be incredibly adept at analyzing incoming data provided by opposing counsel—flagging any gaps and raising potential deposition targets. Defensively, they can be used by counsel to get ahead of any potentially damaging evidence and identify every document that bolsters potential defense arguments.
An expert partner throughout the process—A centralized search team is able to act as a coordinated “search desk” for all involved counsel, as well as a repository and “source of truth” for institutional knowledge across every jurisdiction. As litigation progresses, the search team becomes the right hand of counsel—using their knowledge and expertise to prepare deposition and witness preparation binders and performing ad-hoc searches for counsel. Once a matter goes to trial in one jurisdiction, the search team can use the information gleaned from that proceeding to inform their searches and strategy for the next case.
Facing a complex MDL is an undoubtedly daunting process for any company. But successfully navigating this challenge will be downright impossible if counsel is unable to quickly find and understand the key facts and issues that lie buried within massive volumes of data.
Traditional key document search methodologies are no longer effective at providing that information to counsel. For a better outcome, companies should look for small, specialized search teams, made up of linguistic and technology experts. These teams will be able to build a scalable and effective search strategy tailormade for the unique data ecosystem of a large MDL—thereby proactively providing counsel with the evidence needed to achieve the best possible outcome for each company.
About the Author
Sarah is an eDiscovery Evangelist and Proposal Content Strategist at Lighthouse. Before coming to Lighthouse, she worked for a decade as a practicing attorney at a global law firm, specializing in eDiscovery counseling and case management, data privacy, and information governance. At Lighthouse, she happily utilizes her eDiscovery expertise to help our clients understand and leverage the ever-changing world of legal technology and data governance. She is a problem solver and a collaborator and welcomes any chance to discuss customer pain points in eDiscovery. Sarah earned her B.A. in English from Penn State University and her J.D. from Delaware Law School.