Addressing Bifurcated Conversations in Discovery: eDiscovery Trends

Sometimes, you learn things from being on an educational panel with your peers.  Or perhaps you get reminded of something you already know but hadn’t fully occurred to you yet (like the apple falling from the tree causing Sir Isaac Newton to realize that gravity exists).  That is the case for an upcoming panel for ILTACON coming up in August that I’ll be moderating regarding discovery of ESI from collaboration apps, where one of the panelists brought up the challenge of addressing bifurcated conversations in discovery.

The word “bifurcated” means “divided into two branches” and one of the panelists for the session – Rose Jones, who is a Partner at King & Spalding and Co-Leader of the eDiscovery Practice – mentioned addressing bifurcated conversations as a significant challenge in discovery today in our first prep session.  What does that mean?  Consider this potential real-world scenario:

  • A member of the Research & Development (R&D) department at a product manufacturing company sends an email to his boss (who is VP of R&D) with safety concerns about a new product about to be launched, which includes a report attached with more information.
  • When the VP doesn’t respond after a day, the subordinate sends a follow-up email to the VP to make sure that she didn’t miss seeing the report.
  • When she still doesn’t respond a day later, the subordinate sends a text saying: “Hey, did you see my email with the report about [product X]? I think we have some real problems here.”
  • A few minutes later, the VP sends a text back, saying: “Yes, I saw it. I think your concerns are overblown, but we’ll discuss it among the group and get their reactions. Please post the document on the R&D Slack group and spell out your concerns there and I’ll follow up with a meeting request to discuss.”
  • The subordinate puts the report up on Slack as instructed and discussion ensues between R&D team members about the safety concerns.
  • The VP sends a meeting request out which, with several members of the R&D team working remotely, must be conducted on Zoom.  Because a couple of the team members are out on vacation, the meeting is recorded so that they can catch up on the discussion later.

Does that seem a likely scenario in today’s world?  Certainly.  Now, imagine if the company proceeds to release the product, the safety concerns materialize in actual injuries (or even deaths) to customers of the product, the company is sued, and litigation commences.  To obtain the complete discussion of the issues, discovery could require collection from M365 (email and Office files, including all versions of the report), mobile devices of at least the VP and subordinate, the R&D Slack group discussion and either the MP4 video file or M4A audio file from the Zoom meeting.  Then, you must be able to put the components back together in a timeline to review and understand the complete discussion regarding the product safety concerns, which can be very challenging.  How do you like them apples?  😉

Today, conversations are often bifurcated, trifurcated or even quadfurcated (yes, that’s a real word, I looked it up).  Addressing bifurcated conversations, or conversations that are conducted across even more branches than that, has become a significant challenge in discovery today.  How do you address that challenge?  Join us at the session Better Together? E-discovery with Teams and Other Collaboration Platforms at ILTACON on Thursday, August 26th at 11am PDT to find out!  Thanks, Rose!

So, what do you think?  How are you addressing bifurcated conversations in discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Source: The Circulation of our World

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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