Say What? 5 Ways to Improve Your eDiscovery Communication

This article was posted as original content on the ACEDS Blog and written by Gavin W. Manes. 

Every single day, we make phone calls, offer input during meetings, write emails, and send texts. More than most, legal professionals understand the power of these spoken and written words, and that the right combination of terms can be the difference between persuasively conveying an idea and losing a case. Communicating well in legal technology has the added complexity of technical jargon and industry shorthand. Understanding your client’s needs and conveying those needs to any outside help is the keystone of successful projects.

But since we do it so often, how hard can communication really be? There are certainly things you’re already doing well, and there are ways to improve – five of which we’ve included here. They can be used in legal technology, in the legal industry, and in general communication. We’ve also included a sample conversation between a vendor and a client that may help pinpoint some areas of improvement on both sides.

Write or Speak?

The first question addresses the mode of communication – should I email or call? Text or Slack? We have an abundance of ways to communicate, so how do you choose? From a time perspective, it’s almost always faster to talk than type (no matter how speedy your text-thumbs may be). If a decision needs to be made quickly or there’s a timely issue to address, talking is the best choice as well – we all know how long it takes to clear an inbox, so there’s no guarantee someone will see your message in time.

Writing (email, text, and other messaging) tends to be more formal and may be a better choice if there’s a non-urgent issue that requires deeper thought. Writing is also important companion to speaking in order to memorialize outcomes or decisions so you have a record of what was said. A good rule of thumb is to address top-of-the-line issues over the phone or in a meeting, leaving email for matters not quite as urgent.

The 5 C's

Clarity

The second consideration is that your communication follow the “5 C’s,” the first of which being Clarity. You need to make what you’re asking for very clear, doubly so if there have been multiple discussions, a long time between discussions, or a number of different parties involved. Anyone who has come to the end of a critical conference call feeling muddier than at the beginning knows the importance of this element. A legal technology example of this is the confusion between a ‘production’ and an ‘export.’ Some may consider those interchangeable, some may not, and even at the risk of not sounding like the smartest person in the room, it’s very important for vendors, opposing parties, judges, and any friendly parties to understand exactly what that word means when it is used.

Conciseness

Editing definitely isn’t easy and it certainly isn’t fast, but it’s absolutely worth the effort. There have certainly been times when, through the course of writing something, you changed your mind or position. Leaving any previous opinions dangling can be confusing to the recipient. Particularly with the informality of modern email, it’s quite easy to think that it doesn’t need the same kind of care (and it may not, depending on the subject and/or recipient). Sometimes this can mean providing a bulleted list instead of paragraphs. Sometimes it can mean using simpler language, and sometimes it means having a subject line that truly describes the purpose of the email. Putting a little effort in here can mean the difference between a single email exchange and multiple back-and-forths. From a spoken communication perspective, this can mean carefully crafting a meeting agenda to exclude any items that could be achieved in smaller meetings or through email, or could mean not repeating what others have already said just to drive a point home.

Compelling

This is one that most legal professionals understand deeply. In the practice of law, making a compelling argument is a central tenet to success. But that can go beyond the brief and past the motion into more everyday communication as well. ‘Why should I care?’ sounds like something out of a teenager’s mouth but it’s something that communicators should have top of mind. Start with ‘why should the recipient care?’ and go from there.

Curious

This one goes hand in hand with the next bullet – compassionate. Adopting an attitude of curiosity will help keep the tone of the conversation firmly in the realm of civility. It may seem a bit airy fairy but notice how your approach is different if you approach from genuinely wanting to know.

Compassionate

This is a fancy way of saying to leave your emotions at the door. If you’re upset, angry, or frustrated, then write them down before you call or send a harsh email. Then set it aside and get down to business with the principal questions of what are you asking for, when do you want it, and how do you want it. If you’ve approached the issue with curiosity, then this step will be all the easier. It may seem strange to talk about something like compassion when speaking about the business world, but it’s a good reminder that everyone on all the sides is human.

Sample Conversation

So let’s bring this back into the legal world with a case study of a conversation between an eDiscovery Project Manager (PM) and an attorney (Client). There are several places in here where both the client and the PM misunderstand, where they employ the use of different communication formats, and where issues arise and are resolved. This is meant to highlight why and where communication can go wrong and where it can go right on both sides. The first conversation is a phone call, the second is an email.

PM: So, I’ve sent you the results of your search terms, the ones you sent us the other day. We converted them to the right format, ran them, and I emailed you the results as a CSV.

Client: What do you mean you changed my search terms?

PM: The ones you provided weren’t in a format that we could use with the eDiscovery tool – there were extra spaces, punctuation, missing quotes. We also simplified a few of them – for example, you had the term “heroes” and also “the heroes.” The word “the” is a noise word so they would have produced the same number of results but would have broken the unique hit counter.

Client: I wish you had asked before you changed them.

PM: I didn’t change them, I made it so they would work. Searching is a back and forth process so this is just the first set of results.

Client: I thought we could only run them once.

PM: We almost always have a lot of back and forth on search terms. And I’m sorry, I should have told you about the need to do some reformatting there.

Client: I pulled up the spreadsheet and it’s really confusing. Why is it sorted differently than what I gave you?

PM: I put the potentially problematic terms at the top and that’s why it’s sorted by unique hits and then total hits. This lets you see terms that are all by themselves causing documents to appear in the search. The unique hit count for a particular search term are the number of documents that hit on that search term and no other term in these set of terms. Unique hits for “heroes” is the number of documents that only have “heroes” in it and not some of the other terms like “magazine.’

Client: I think I understand but here’s the thing. I want to reduce the number of hits, there’s no way I can review all this. In my other cases, we did some filtering on file types. Did you do that here?

PM: We did, but in our early discussions you mentioned this was related to an eDiscovery request for documents. We understand that to mean you’re not looking for forensics artifacts, only common producible types. So we applied a filter that removed known types from the NSRL and an eDiscovery filter that got rid of things like HTML, forensics artifacts, pictures and other things that are normally not responsive to search terms or in discovery.

Client: But I told you I only wanted user-generated data.

PM: There’s no easy way to locate user generated vs. data downloaded as a by-product of a program or tool. This is the method we use here to get at what you’re looking for.

Client: I need pictures and this case is about source code so I need that too. Included in the hit results.

PM: Ok, I’m sorry when you first called you gave me a clear set of instructions on what to do and I didn’t ask any more questions because it seemed like you were pretty certain about that….

At this point, The PM and Client discuss the process (see this whitepaper and link to something on our blog)

Client: OK, I understand and agree with the approach. So, for the search terms, I need to find a way to reduce the hits. What do you suggest?

PM: Can we apply a date filter? Or qualify a term? Like “magazine” within 10 of “publication”?

Client: I want to do the date filter. Only include material that is before June 17th of last year.

PM: Great, so we will filter out email sent after that date and documents that were modified after that date.

Client: No, I care about created dates also.

PM: My lab reported that a significant portion of the data has been copied to the computer recently but the modified dates are old because they used DropBox. This means all the older data has been synced to the computer recently but has older modified dates. You’ll want to include those, and emails with attachments where the modified date of the attachment is prior to your date as well.

Client: I’m still confused but let’s go with that and see what comes back. I’ll send you an updated list of search terms using this spreadsheet you provided and you can run them again and let me know the results.

This phone conversation had some misunderstandings and mistakes made regarding the scope of the client’s case and how the search process works. The next conversation takes place over email and continues the above discussion threads.

Client: I’m responding to your email with the updated search term hits. I don’t understand why some of the terms got bigger and not smaller when we qualified them. I told you I wanted to reduce the number of hits.

PM: Several of your terms didn’t get more narrow because you added “OR”s or made a wildcard “Her*” and “magazine.” So, your term was going to gather more than it did previously.

Client: Can we have a phone call and discuss each term? That’s probably a more efficient way than me trying to guess what will get me to a smaller number of search hits.

PM: We could also do a Zoom and I can show you using your database how you can play around with search hits in real time.

Client: Ok. Send me an invitation.

Analysis

These conversations are rich with examples of good choices in communication and ones that could be improved. This is particularly true with the last email exchange, where the suggestions to switch modes of communication helped bring clarity and resolution to the problem of how to craft search terms that reduce hits. Where the Project Manager failed to communicate the modifications they made to the terms at the beginning was a where a lack of communication caused tension and possibly lost time. Where the client didn’t understand how the search process worked but didn’t portray that in their initial consultative conversation. But we can see the move towards a better understanding as the conversation continued.

What did you think? Any good takeaways about communication? Let us know here.