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…the probability of mistakes can be vastly reduced with better communications during the discovery process.

It is inevitable.  There is nothing you can do to prevent it.  Or is there?

Discovery mistakes are all too common.  Some blame it on the fast pace of litigation.  Others, the complexities of litigation support technologies and lack of attorney technical know-how.

But when it is all said and done, the probability of mistakes can be vastly reduced with better communications during the discovery process.

At the onset of the discovery process opposing counsels should meet and begin laying the ground work for effective communications.  Effective communications does not begin and end with an ESI stipulation.  Negotiating and developing the ESI stipulation should be an exercise in communication up and down the discovery chain of each of the respective parties that results in a communication protocol.

Both trial counsel and legal departments are guilty of failing to speak with their clients and business units regarding the effect discovery will have on their business operations.  At times they just may not have the depth of understanding of the client’s business organization or left such tasks to junior associates and paralegals.

Negotiating and developing the ESI stipulation should be an exercise in communication up and down the discovery chain of each of the respective parties that results in a communication protocol.

Too much of the discovery process unfolds in email.   There is not enough talking.  Whether in a telephone conversation or face to face meeting, a cold impassionate email does not offer a real-time exchange of ideas and hashing out problems or concerns.

Perhaps the most exacerbating failure of communications occurs when there is a failure to timely deliver bad news.  This robs counsel and the client of the opportunity to create effective problem solving remedies, giving birth to nettlesome spoliation issues.

Courts are starting to recognize the failures of parties to communicate and are starting to enforce in person meetings.  Time will tell if new rules placing standards of technical competency on attorneys will open up the communication gates between attorneys and between attorneys and their clients.

Courts are starting to recognize the failures of parties to communicate and are starting to enforce in person meetings.

In the end better communications will require a culture change.   A culture of more civility between opposing parties, transparency between senior level attorneys and their junior associates and more personal touches with clients and technicians.