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Are We Asking the Wrong Questions in Discovery?

A central axiom in scientific research is that the quality of the answer received depends on the quality of the question asked. This adage should be considered in discovery, as well. Nearly every lawyer has a story where he or she was surprised at an interview or deposition by an employee who had responsive information that had not been identified in the collection process. That information could be housed in a day planner, on a tablet device, or on their personal computer. For some individuals, the questions must be both broad and specific enough to capture all the information in their possession. A question that is too narrow or fails to specify all potential sources of information may lead to a low-quality answer and surprises down the road.

We have shifted our focus from paper files to email and electronic files without carefully considering the knowledge gap. With the extreme growth in technology in the last twenty years, it is not uncommon to see some employees in an organization eschew email as much as possible, while others run “paperless” offices. Moreover, some individuals may use a combination of paper and electronic files. In some cases, those individuals may duplicate electronic content on paper (and vice-versa), leading to a mind-boggling amount of potentially relevant information.

When interviewing an employee who may have relevant information in a particular case, then, the lawyer must be cognizant of all the ways that individual creates and stores information. For employees who have assistants, a conversation with the assistant could identify sources of documents the employee may not have considered. For individuals who are “tech-savvy,” the lawyer must ask about all devices that person uses for any business purpose, including email. In the most difficult case, the individual who falls somewhere between technophobe and early adopter, the lawyer must take great care to ask the right questions and identify all sources of potentially relevant information, whether electronic or on paper.

As the use of technology in business increases, we must remember that this growth is not equal among all individuals and companies. In some companies, every employee will have a smartphone, tablet, and laptop, generating huge amounts of electronic data. In others, email may be limited to certain groups of employees and used only in the office. Before responding to discovery or even sending a litigation hold letter, gaining knowledge of how that particular company creates and maintains information is imperative. We must ask the best questions to receive the best answers.

Valerie Diden Moore