We are fast approaching the turning of the fall leaves which means that turkeys are being fattened for Thanksgiving. This is kind of a continuation of my smiley faces rant in that the scope of discovery in a case is invariably “fattened up” before the unsuspecting turkey is placed in the oven.
Here’s the scoop: we know that most litigation cases settle before trial. But, in many cases we over-collect and so we use keywords to negotiate down the Anticipated Cost of Discovery (ACD).
See the problem: over-collection because we have no way of substantiating a narrower scope of discovery. Let’s say a case might initially settle for around $250k, but then we calculate the ACD to be $3M. Guess what, opposing counsel now has a significantly higher “settlement ceiling” to work with. Counsel for both parties then confer and a settlement of say $2.5M is agreed.
In building up the scope and anticipated cost of discovery, opposing council has fattened up the turkey. In some ways Early Case Assessment has become our own worst enemy – we run a number of keyword searches and calculations to get a pretty accurate cost of anticipated discovery.
This is not the defense attorney’s fault, it is simply a consequence of the way we preserve and collect. So again, at Catelas we believe we have the answer: provide a comprehensive and defensible way to limit the scope of discovery. We are able to help counsel to preserve & collect only those custodians that are truly close to the matter. Not by keyword culling, but by actually identifying the relevant custodians.
Bottom line is … don’t get caught in the Early Case Assessment trap by settling for too much!