Success in eDiscovery is determined largely by the ability to synergize “people, process and technology.” Okay, we hear your collective groan. The phrase is trite, tired and overused, which is what it is. Since it works so well for eDiscovery, however, this blog will lean in on buzzwords. Many of the “26 Annoying Phrases You Should Stop Using at Work” are included—with a few additional ones thrown in for good measure. Can you find them all? Happy searching!
The COVID-19-related changes are innumerable, as courts have been out of pocket for many weeks and litigation budget cuts are par for the course. The global pandemic will require a clear paradigm shift, requiring many teams to think outside the box on the go-forward eDiscovery case strategy and, ultimately, do more with less.
First, process. We cannot fully peel back the layers of the eDiscovery onion in one blog. Great process implies a lot of process-oriented tools in the toolkit: legal hold notices, eDiscovery stipulations, custodians interview templates, documentation, project reporting, etc. A short introduction to the key process steps moves the needle as we prepare to more fully unpack each phase and its implications in the next several blogs:
- Preservation: when litigation is reasonably foreseeable, both parties must prepare a preservation plan to protect proportionate and relevant information.
- Collection: information is collected for potential relevance; start with the low-hanging fruit because proportionality mandates that you cannot boil the ocean.
- Processing: the collected data is processed into an adequately vetted and “right fit” eDiscovery tool.
- Identification: the processed data is searched or otherwise culled for review to find the documents likely to be relevant.
- Review: when push comes to shove, someone must review and identify the documents eligible for production.
- Production: providing production-eligible information to the opposing party.
- Merits: ultimately, eDiscovery is intended to facilitate the merits, so that the questions of fact can be run up the flagpole to the ultimate decisionmaker: a judge, jury, arbitration panel, etc.
These process steps tend to be iterative during the case and must be focused on one goal: to help decide the case on its merits.
Second, people. At the end of the day, each eDiscovery project has humans that are executing against the strategy. These include internal IT personnel, eDiscovery technologists, litigation support professionals, project managers, review attorneys, outside merits counsel, and eDiscovery counsel. Naturally, each person has their part to play. Each person brings a different perspective and valuable contributions to the discussion. As a result, the ultimate decisionmaker must break down the silos and ensure that everyone is working against a consistent strategy.
Third, technology. Naturally, eDiscovery has a lot of technology underpinnings. When eDiscovery technology is discussed, it is easy to default to a tool that worked in a past case, or to a sales or operations support team that worked on another matter. The key to great eDiscovery execution is a proven and articulable technology fit for that particular matter. This requires full vetting—security, reliability, functionality, scale, operations, etc.—and a recognition that this technology itself not the be-all-end-all of case success. It is one component.
Each of these three things—people, process and technology—must be firing on all cylinders so that the project runs smoothly and efficiently.
The next several blogs—the first will be published Wednesday, May 13, 2020—will circle back and discuss each litigation phase in more detail.
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