Developing your 'Discovery Playbook' phase one: Information Governance

John Larimer, BridgeTower Media Newswires

Discovery is often an expensive proposition. Costs to collect, review and produce documents can stack up early in the life of a case and have been known to prematurely force parties to the settlement table. Any attorney unlucky enough to be tasked with managing a litigation budget knows how hard it is to tame the discovery beast. As a former in-house attorney and recipient of my fair share of eye-popping invoices, I’ve been there. The good news is that with a little elbow grease and some advance planning, unnecessary discovery costs can be prevented. In this article, the first installment of our “Discovery Playbook” series, I introduce the concept of a discovery playbook and focus on cost cutting at the first stage of a discovery project: Information Governance.

There are many factors that contribute to the cost of discovery, but data volume is a primary factor. The more data you push into the discovery phase of your case, the more data to evaluate for potential relevance, to store in a high cost review platform during the life of the case, and to review and produce. All of this activity adds up to more digits to the left of the decimal on your discovery bills.

Time, or the lack thereof, also contributes to discovery costs. Litigants usually seek to avoid discovery costs for as long as they can. This makes sense, especially if a potential settlement is in the works. However, when discovery is pushed off to the eleventh hour and then suddenly comes rushing back, there is often not enough time to make the kind of well-considered decisions that lead to lower discovery costs.

The way to address these twin challenges — large data volumes and lack of time — is to make as many “well considered decisions” as you can in advance. In other words, have a plan in place. Your plan, or “Discovery Playbook” as I like to call it, will serve as your roadmap to avoid the common pitfalls that drive up costs at each stage of a discovery project.

So, what are the stages of a discovery project? A useful and industry-accepted guide is the Electronic Discovery Reference Model (“EDRM”) (see The EDRM conceptualizes discovery projects as a series of stages that data must pass through from the beginning of a project when data is searched and collected, to review of the data, often by large teams of document review attorneys, to the conclusion of a discovery project, when relevant data is produced to opposing counsel.

“Information Governance” is the first stage of any discovery project and consists of the body of policies and practices an entity has for the retention and destruction of its data.

Unfortunately, Information Governance is typically not given enough attention, or even considered at all, as part of the discovery process. I think this is because many entities don’t connect the dots between their document retention policies and their discovery costs. The reality is that data packrats who don’t run a lean and mean Information Governance machine start off their discovery journey at a disadvantage.

Viewing a discovery project through the lens of a “journey,” you can think of the Information Governance dilemma thusly: When packing for my next vacation, how many polyester leisure suits from the 70s or pairs of acid washed jeans from the 80s do I need to rifle through, just to get at the clothes I actually wear in 2020? If, like me, you inevitably find yourself packing at the last possible moment, you may throw up your hands and toss everything in, having to sit on your suitcase to close it and wondering, several hundred miles into your journey, if you remembered your toothbrush and clean socks.

Unfortunately, many discovery projects start off just this way. More superfluous data kicking about the office, which could include not only ancient emails or obsolete databases, but also tangible items like boxes of hard copy documents collecting dust in a warehouse, means more data to rifle through each time a discovery demand rolls in, just to get at a universe of potentially relevant data. This “rifling” takes time and money. Moreover, time constraints often do not allow for sufficient rifling. A common result is that a large amount of superfluous data gets collected and shot through the discovery pipeline. Lugging such data along your discovery journey, like an overstuffed suitcase, adds costs at every stage.

Therefore, an important part of any Discovery Playbook is to address Information Governance. This involves developing a document management and retention program that cleans up the clutter with policies for the routine destruction of data that no longer serves a business purpose and isn’t subject to preservation obligations, for example for regulatory compliance or pursuant to a legal hold.

Be forewarned: cleaning up your legacy data can be a daunting and thankless task.  It is often easier for a business to simply stick its head in the sand and avoid the issue entirely rather than dig in to the complexities of fine-tuning an Information Governance program.  Therefore, an important step in the process is to seek buy-in from key stakeholders in your organization. Anyone who has been broadsided by a sky-high discovery bill will likely pay close attention when you explain how the “clutter” resulting from a poorly constructed Information Governance system can dramatically increase discovery costs.

While the discovery beast can never be altogether vanquished, with some advance planning it can be held in check. Pulling together a Discovery Playbook that anticipates the challenges that arise at each stage of a discovery project, starting with Information Governance, will enable you to act decisively and predictably when the next project comes roaring in. With such a playbook in hand, you will come closer to hitting the discovery sweet spot: a proportionate and defensible effort, but one that does not boil the ocean and bankrupt your litigation budget.


John Larimer is founder and managing attorney of Larimer Law. Lawrence Bice is Senior Counsel and Director of Litigation Services at Larimer Law, and is an adjunct professor at the University at Buffalo.