How do we keep our focus on the case objectives throughout the eDiscovery cycle?
A trial team is focused, first and foremost, on the outcome of the actual litigation. To be valuable, the eDiscovery costs must directly advance the overall case objectives. We believe that you maximize the impact of the client’s eDiscovery spend, and ensure eDiscovery’s contribution to the desired outcome, by making the eDiscovery team a natural extension of the trial team.
The eDiscovery team must hold in mind the desired case objectives and let those objectives shape their decision-making. To be valuable, eDiscovery can’t just focus on making a defensible production. This is best understood by breaking up eDiscovery into its component parts: (1) the technical phase; (2) the review phase; and (3) the case management phase.
Our partnership with the trial team starts with the client’s technology infrastructure. The IT interview reveals what information is (or is not) available, how you get it and who is going to help. We make this “data mapping” process as fast and non-disruptive as possible, utilizing seasoned corporate IT veterans on our team to make sure that the client sees that we value the time of their IT staff.
EDiscovery costs are largely driven by the amount of data you put into the “funnel,” which then has to be machined down into a final production. An IT interview represents the first opportunity to identify non-relevant data to exclude from the collection, as well as how to find what is important. The information to accomplish that can come in many forms: understanding how systems work, who is relevant and what internal tools/skills are available to reduce the collected data.
Here are two examples of how we use the IT interview to be an extension of the trial team:
First, we understand the overall IT environment for what it can tell us about the industry, the company priorities and what is important. The IT infrastructure is not haphazard; it was built to support common industry-specific business requirements, prioritizing what matters and discarding what does not.
Second, we look for jargon-free ways to describe the information that is available to the trial team. It’s critical at this step for the eDiscovery team to translate this information into a clear, specific language to help enable the trial team in understanding how each data source relates to the issues in the case and what options exist to narrow the data during collection.
A clear understanding of the client’s system is critical to any eDiscovery project’s success. It buttresses defensible legal hold and preservation measures, facilitates responsible negotiation of eDiscovery protocols and allows narrowing of discovery scope to reduce processing and attorney review costs. It is the foundation on which the success (and cost) of the project rests.
The Review Team
Of all the documents that will be reviewed during the course of an eDiscovery project, only some will be responsive and relevant. Of the responsive and relevant documents, only a very small number will be useful in supporting the theory of the case or as exhibits at a deposition, in either motions practice or at trial. I call these the “dispositionally important documents.”
Our review approach is to invest time early in the process to identify these dispositionally important documents and fast-track them to the trial team for confirmation. This “fast-track feedback loop” enables the review team to be a natural extension of the trial team. In addition, it accelerates the trial team’s understanding of the key facts and enables them to hone the litigation strategy much earlier. Integrating the review team this tightly with the trial team also allows us to highlight any documents that are helpful for context.
A document review must, at its core, protect privileged documents. That is the minimum compliance standard. However, client value only results from finding the dispositionally important documents through this structured, evolving dialogue with the trial team.
The eDiscovery Technology
Most mainstream eDiscovery review technology is primarily designed for document review and production, not management of the case facts. That is not a criticism; it’s just a recognition of the specialized work we need to use it for. Most of the features and functionality of a modern eDiscovery tool were designed to enable experienced/technically proficient document review attorneys to produce a defensible final production – not to enable the trial team to organize and visualize the key facts to develop a more effective litigation strategy.
This means that review teams have to deliver information to trial teams in a better setting than a review tool.
For eDiscovery to add value and contribute to outcomes, it has to deliver the dispositionally important documents to the trial teams faster and in a way that facilitates management of the critical case facts. That will be the subject of a later post.
The eDiscovery process should make the trial team more effective and, ultimately, deliver better outcomes for the client.