The article highlights the importance of the discovery phase when building a case to resolve a dispute.
Q: Could you outline the importance of the discovery phase in building a case to resolve a dispute? In your opinion, do parties pay sufficient attention to this process?
Coyne: The nature of discovery is of course to reveal, or confirm, facts. However, parties will often focus on the material they desire to see from their opponent, or the facts they believe to be true. This may result in a lack of information which could potentially ruin the party’s case, as they will not have had a chance to consider a defence. Early discovery of information is vital if parties wish to develop a thorough case.
Q: To what extent can the discovery phase be used to evaluate the arguments a plaintiff is likely to use, and pre-empt the course a dispute is likely to take?
Coyne: Discovery typically identifies additional litigation risks which need to be dealt with. Internal discussions relating to historic emails about a problematic client can often be simply careless when there is no fear of litigation. However, when these are visited years later and need to be offered up to the counterparty as part of the discovery process, the potential ramifications can be significant. Insights into the technical infrastructure of your counterparty – such as CRM systems, bug tracking systems, and so on – can often be helpful when confirming what information stores you wish to be searched for relevant material.
Q: What steps can parties take to control costs during the discovery phase? How can they balance cutting costs with undertaking sufficient discovery?
Coyne: Cost control is a major factor and we typically see parties entering into agreements with e-Discovery providers based on a ‘per gigabyte’ or ‘per page’ pricing structure. Whilst this can often suit disputes where the precise number of documents is known at the outset, our experience is that the volume of documents – from both parties – will balloon during the course of the litigation. Often it will be more cost effective to select an e-Discovery service with a fixed cost. Generally, the more information about the nature, size and whereabouts of the electronic documents at the outset, the easier it is to provide an accurate cost for e-Discovery services and estimates of the time and people needed to search, review and disclose the documents.
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