On April 9th, FBI agents descended on Rockefeller Center in New York City. Their target: the law office of Michael Cohen, President Trump’s long-time personal lawyer, and the files contained within. When the raid concluded, agents had seized cell phones, computer hard drives, and box after box of paper documents—several millions of documents to review.
That review, U.S. District Judge Kimba Wood indicated yesterday, might need a bit more speed. While Cohen’s team is busy reviewing the documents for attorney-client privilege before prosecutors lay eyes on them—itself an unusual approach in an otherwise incredibly unusual dispute—Judge Wood implied that “the process was moving too slowly,” according to the New York Times.
“It is important for the court to balance the slow, deliberate needs of those who are asserting attorney-client privilege, with the need for an investigation to go forward,” Judge Wood said at a hearing Wednesday, during which she insisted that the review be completed by June 15th.
Cohen’s lawyer seemed none too thrilled. “I just don’t know what I’m going to do to get that done,” Todd Harrison, Cohen’s attorney, lamented. “I need more time than that.”
Cohen’s team has made its way through more than a million documents already, out of which 252 documents have been tagged as privileged or highly personal. But the team still has several phones and 19 other storage devices to review, Bloomberg reports.
That work seems to be taking its toll. According to Bloomberg:
Harrison said in court that the 15 lawyers and two data specialists working for Cohen are doing an initial review… The team is working day and night and on weekends, sleeping on couches in the office, he said, adding that an associate had to be sent home to rest when he developed a hand tremor from the work.
Yes, eDiscovery, with its stress-inducing urgency and inefficiency, has taken out an associate attorney.
All Nighters, Endless Work Weeks, and Hand Tremors: Not a Necessary Component of eDiscovery
Sure, the defense’s complaints are part of the typical song and dance involved in many discovery disputes. But it’s also a story that rings true. Soul-crushing, back-breaking document review processes are still far too common.
When Cohen’s lawyer describes attorneys living out of their offices so they can read email after email after email, or associates being ground down under the weight of massive document review—well, he’s describing the very worst of eDiscovery, what we often call "eDiscovery hell." It’s where legal professionals end up when they’re faced exploding amounts of data, intractable deadlines, slow processes, and dated technology.
Indeed, sometimes review is so onerous that litigants simply forgo it. Take, for example, the case of Ellen Pao, whose groundbreaking discrimination lawsuit against the venture capital firm Kleiner Perkins presaged today’s #metoo movement, but eventually failed in court. That failure, in Pao’s estimation, was in part due to the difficulty of discovery:
Since the trial, I have had time to think of all the things I wished I’d done differently. I might have had better luck with public opinion, for instance, if I’d spent more time with the press and prepared a few pages of talking points every day, like Kleiner had. But Kleiner also had tremendous resources that I couldn’t match, and it made a difference.
Pao, a Harvard-educated attorney, couldn’t keep up:
For example, I didn’t have time to go through all my emails to figure out which ones to give Kleiner, so during the discovery process we gave them practically everything, some 700,000 emails — most of which we could have legally withheld. Kleiner meanwhile handed over just 5,000 emails, claiming they didn’t have the resources to search for anything other than emails that we specifically requested. They did have the resources to pick over my emails, though — I heard they hired a team in India to read and sort through every single one.
During depositions, they brought up everything from my nanny’s contract to an exercise I’d done in therapy where I listed resentments. Emails to friends, emails to my husband, emails to other family members, even emails to my lawyers.
The brute-force, eyes-on review that Pao describes is still surprisingly common—and still incredibly impractical.
In the Cohen case it would be nearly impossible. To get through the approximately 3.7 million files Cohen received from the government, for example, would take a team of 15 reviewing lawyers nearly 5,000 hours, or over 205 full days, assuming each attorney reviewed 50 documents an hour. Twenty-four hours a day. For the better part of a year.
That’s enough to sideline an entire army of eager associates.
Cohen’s team probably (hopefully) isn’t conducting a manual review. But if they’re using discovery technology designed in the 80s, they’re probably not getting through those millions of documents nearly as efficiently as they could be. Dated discovery software, for example, is slow, glitchy, and expensive. Poorly designed and overly complicated technology can make reviewing documents difficult—and that’s once you get to the documents. With some software, simply ingesting and processing data can take days. When you’re under a pressing deadline, every minute wasted is a setback.
Thankfully, the era of manual review and legacy eDiscovery software is coming to an end. Whether you’re reviewing thousands of documents or millions, modern eDiscovery technology makes it much easier to get through massive amounts of information in a fraction of the time.
Cloud-based discovery technology, for example, automates thousands of steps that once had to be completed manually. Sophisticated technology can help legal teams quickly cut down the number of documents needing review.
Technology like Logikcull can instantly identify potentially privileged documents, allowing legal professionals to narrow their review and hone in on the most urgent files. Advanced search technology enables those same reviewers to construct sophisticated search queries simply and easily—without the need for complicated search syntax or a degree in information sciences.
And cloud-based tools mean that reviewers no longer have to be chained to their offices. Today, files can be uploaded, reviewed, and produced from literally anywhere there’s an internet connection.
For savvy lawyers, those who embrace this new approach to discovery, there’s a better way to get things done, one that doesn’t require round-the-clock review, nights on the office couch, damaged relationships and near nervous breakdowns.
This post was authored by Casey C. Sullivan, who leads education and awareness efforts at Logikcull. You can reach him at casey.sullivan@logikcull.com or on Twitter at @caseycsull.
