Guest Blog by Michael Hamilton, J.D., Exterro, Inc.
Being an attorney is like being a juggler. Within the litigation process there are many balls (tasks) to juggle: reviewing a claim, researching legal precedence, interviewing witnesses, submitting interrogatories, prepping experts, reviewing documents and more. What can make this juggling act even more challenging is when the “e-discovery wrench” is thrown into the act. This added twist involves identifying, preserving, collecting, reviewing and producing all potentially relevant evidence stored on computers, servers, cloud systems, iPhones, PDA’s, social media sites, etc.
While attorneys are familiar with juggling the many balls involved in routine litigation or investigations, the e-discovery wrench can really cause the balls to drop if not prepared (e.g. increased risks, unbudgeted cost overruns, sanctions for spoliation, etc.).
Putting in place a process-oriented approach for managing the many balls of e-discovery can help attorneys adjust their routines when an e-discovery wrench is thrown their way. Outlined below are a few juggling tips so that the e-discovery wrench can be more easily transformed into balls used in the legal juggling act:
Juggling Tip #1: Learn where the balls are located
One of the main reasons e-discovery is so complicated is that there are the many different departments involved in the process. The first step in implementing a process-oriented approach is to identify all stakeholders at the outset of the matter and then communicate to each the deliverables for which they are responsible. Stakeholders can include inside and outside legal, IT, records management, HR and third-party vendors (e.g. data processing, collection or document review).
Juggling Tip #2: Assess how many balls are likely to be added
Through an examination of the case facts and custodian interviews, legal teams should work with IT to narrow down and create e-discovery requirements that fit the needs and size of the e-discovery project. This discussion should cover what file types are likely to be collected, what data sources the information resides on and how accessible they are and address any potential issues that could cause delays and unforeseen cost increases.
Juggling Tip #3: Plan for a new juggling routine
To ensure that preservation steps are implemented as quickly as possible, legal teams should meet with all the identified stakeholders to create a comprehensive discovery plan. For the plan to be effective, all stakeholders must buy-in and clearly understand their roles and responsibilities. The discovery plan should address the following:
- What needs to happen?
- When it needs to happen?
- Who performs what?
- How much will it cost?
- Potential risks?
- How to manage those risks?
- What are the pertinent deadlines?
All of these questions will help create a dynamic plan that helps ensure predictability as the project progresses.
Juggling Tip #4: Refine the juggling routine
Recording historical data from prior e-discovery cases can increase defensibility and help legal teams refine processes over time. In addition to preserving key metrics related to the various discovery activities, legal teams should conduct interviews with key players at the close of the matter to learn why certain decisions were made, how the process might be improved in the future and how resources might be better allocated going forward.
Juggling Tip #5: Avoid future e-discovery wrenches
In litigation that involves e-discovery, it is very easy for costs spiral out of control. Legal teams can better control costs by estimating scope at the earliest states of discovery to assess whether or not they are proportionate to the worth of the case. Once costs have been estimated, it is much easier for legal teams to establish and maintain a project budget and shore up inefficiencies before major expenses are accrued.
Michael Hamilton, J.D., is a Sr. E-Discovery Analyst focused on educating customers, prospects and industry experts on the issues solved with the Exterro Fusion® e-discovery software suite. Mike’s e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between the IT and legal teams. Hamilton earned his J.D. from the University of Oregon School of Law. To view other posts by Michael Hamilton, J.D., visit Exterro’s E-Discovery Beat Blog at http://www.exterro.com/e-discovery-beat/