For my entire career, I have been involved in complex litigation. In 1988, as a young computer scientist, I became involved in litigation support, working with petroleum engineers in Louisiana oilfield related litigation. Later, during law school, I started an early-stage document scanning and hosting company. From there, I went through Deloitte and Touché, FTI Consulting, and LECG, each step paralleling the growth of the computer age, and of its by-product: digital evidence.
Over those years, as I witnessed the growth of data intensive cases, I came to realize that structured data discovery would become as persuasive tomorrow as email discovery is today. However, in order for that to happen, parties would need to have guidelines to help them get into the structured data head space. From this realization, “Fact Crashing” was born.
What is Fact Crashing, you ask? It sounds destructive, but it’s not. It is a nerdy portmanteau. It is two concepts pulled together: “FACT” being a digital truth, and “CRASHING” referring to the project management technique of prioritizing one phase of a project in order to accelerate completion of the entire project. In the case of Fact Crashing, we have found that cases that prioritize dealing with structured data can provide a significant procedural, tactical, and even strategic advantage, including the repeated experience of speeding up dispute resolution by providing both parties with quicker access to mutually agreeable (or mutually obvious) facts.
Why does this help? Because it circumvents two of the biggest barriers to dispute resolution: a historical sparsity of facts and a modern abundance of emails and other unstructured digital documents.
A sparsity of evidentiary facts, normal in most litigation, is a challenge. This necessarily leads to depositions, motions, and trial all with the end goal of gathering testimony for the judge or the jury in their role as the “trier of fact” to allow them to determine ultimate facts. It leads to the need for deductions, abductions, and inferences.
But when, instead, there is an abundance of evidentiary facts, then the path to resolution can shorten, and sometimes skip, trial altogether. This can happen when we focus on ambient, contextual, and transactional data. When there is so much evidentiary data, that the parties, themselves, can see the writing on the wall and agree to the ultimate facts.
The abundance of emails and unstructured documents is also a challenge. This leads to the high cost of document classification and production, including the necessity of privilege review. While the volume of written content seems to be increasing on a year-to-year basis, consider what would happen if alternative sources of ultimate facts could reduce, or even eliminate, the need for the review of documents. This can happen when we focus on contextual and transactional data. That is the purpose of Fact Crashing — focusing on ambient, contextual, and transactional data earlier and more broadly.
It all of this were true, and if this data can reduce costs and accelerate resolution, why don’t we focus on it more often?
There are many reasons that we don’t. It’s new. It’s different. It’s confusing. It’s technical. It is human nature to stick with the methods and processes which are most familiar to us, even if (even when) those methods and processes will not provide an optimal solution. This is known as the streetlight effect.
Or it may be because we lack the vocabulary, skills, tools, or guidelines to deal with it.
For this reason, we’ve worked for the past few years to develop nine (9) principles of Fact Crashing. These principles provide that missing guideline. They summarize decades of experience and learning on how to identify, qualify, prioritize, and apply structured data to the benefit of resolving disputes, predominately in a legal setting. They provide words and vocabulary, and they outline the very tools that we have used successfully for years to guide parties to closure through the thoughtful application of data.
In this series of blogs, over the next few weeks and months, I will lay out the principles of Fact Crashing. I hope that you can help me make this better, and I hope that I can help you with better solutions for your next dispute.
iDiscovery Solutions is a strategic consulting, technology, and expert services firm – providing customized eDiscovery solutions from digital forensics to expert testimony for law firms and corporations across the United States and Europe.