Copyright chrisinplymouth

We are delving into each of the five questions each week.  In case you missed the first two posts, here’s your chance to read them.  In week one, we laid out the 5 questions to ask your law firm and why. In week two, we tackled question#1:  Who’s in Charge of Planning for and Managing my eDiscovery?

Now, onto question #2.  Does your firm have a process that they follow for electronic discovery?  

Process.  Ugh, what a consulting term.  We don’t do process.  We are lawyers.

And — that’s where you are missing the boat.  A BIG part of the problem with the practice, and therefore the COST, of legal services is that we constantly reinvent the wheel.  The problem is rampant within firms, when clients use multiple firms for legal services, etc.  How many firms provide their work product content to clients to be maintained in a library that the clients can then access for other firms to utilize?  Very, very few.  So, instead, we reinvent the memo on whether Colorado’s distributor law allows us to do something, or when expert testimony is admissible in North Carolina.

That is consistently true with eDiscovery, where for organizations, the same people are always custodians, and the same types of ESI are at issue.  It’s the PERFECT STORM just begging for a process.

So Stop It.  Stop reinventing the wheel in eDiscovery.  

Electronic Discovery is the perfect place to get a good process in place to manage costs and gather metrics.  (We’ll also explore the benefit of metrics more in Question #5: What kind of metrics does your firm provide?)

The question is does your firm have a process?  And if so, what is it?  Here’s generally what the eDiscovery process should look like.  Of course, oftentimes the burden falls heavier on one party (think individual(s) vs. corporation), but both sides should follow the process.

A Look at the eDiscovery Process

1. Understand the case and what’s needed for preservation and production.  This is a VERY crucial first step in the process and is almost always overlooked.  The ideal process has members from the trial team sit with eDiscovery counsel AND the client and discuss the case.  I find that having the client present keeps the scope of discovery focused and not broader than it needs to be for the case.  Discussing the case includes these pieces:

* Jurisdiction (need to know whether eDiscovery rules apply — Fed or State court?) (HINT:  Look them up on the eDiscovery Assistant app in the meeting.)
* Judge (how has the judge treated eDiscovery issues in the past?) (HINT: use the app search for your judge in the Case Digests in the meeting.)
* What is the case about factually?  What are the legal theories? What are we REALLY trying to get to?
* What is the scope of preservation that should be considered for the case?  Are there specific strategic reasons for a scope?  Who will communicate the proposed scope to the other side and when?
* Who will implement and manage preservation at the client?  What systems/practices/process are in place at the client to facilitate preservation/collection?
* What actual steps need to be taken for preservation given current systems and what will those costs be?  Does there need to be thoughts about how to minimize costs that involve cooperation from opposing counsel?
* Identify the KEY  initial custodians to interview.
* Identify any third parties you need to contact regarding preservation.

2. Start interviewing custodians.  The best practice is to have trial counsel and eDiscovery counsel conduct this interview, with eDiscovery counsel leading it.  You need to find out what ESI needs to be preserved and get an idea of what the custodian knows, who else is involved, and start making decisions about what’s reasonable for preservation and collection.  There’s always a tendency to reach more people than you need to — that’s why a team approach helps.  Start with the 2-3 people who know the most.  That helps focus later interviews and get you to decisions on ESI faster.  You also have a good basis for reviewing the custodian’s ESI and conducting better follow up interviews for the merits of the case.

3.Draft and send legal hold notice and preservation letter to counsel.  One of the best ways to control costs in eDiscovery is to control the scope of preservation.  After you do your homework, reach out to the other side and tell them what you propose as a scope (using dates, custodians and types of ESI) and make them come back to you with additional inputs.  Be specific.  For the internal legal hold notice, write it in English.  You won’t have to produce it (it’s privileged), so make it useful for your client to actually know what they should be doing.  “All correspondence to ABC company” isn’t specific.   “All documents” isn’t specific.  Use your custodial interviews to find out what should go in the categories of documents for the legal hold notice.

4. Identify what outside resources you need for preserving and collecting data and locate them.  Some clients do their own imaging internally, then send data out.  Others hire providers to do this work.  What relationships/resources does your firm have?  Does the client already have relationships?

5. Choose your Technology.  The review platform is the biggest choice — and there are a number of variables that go into it.  Cost is one, how many lawyers will be using it is key, and what you really need from a platform is important.  What I use for a class action is different than a third party subpoena.  DIY eDiscovery platforms can save money and be faster, but they are not as full fledged as review platforms with analytics.  Don’t be afraid to challenge what your firm has OR to ask what they’ll charge you for it.  Craig Ball wrote an amazing post on his blog about the unconscionability of eDiscovery pricing and I agree with it completely.

6. Manage the Preservation/Collection/Production Process.  You also need someone to manage that relationship and make decisions as they are necessary.  Who will do that from the firm?  A combination of eDiscovery counsel and lit support is good, depending on the provider’s team (sometimes you just need the lawyer).

7. Regularly Evaluate Technology Spend as Case Goes on.  If the case is sitting dormant on appeal, talk to the hosting provider and archive your data so you don’t keep paying hosting charges. Take down the data that’s marked irrelevant after review.  Experienced counsel can save money IF they know what’s going on with the case.

8. Reporting and Metrics Generation.  Document your work and decisions.  We all know that discovery happens, we forget about it for awhile, and then there’s a crisis.  Having a discovery report gives you a reference to revisit. We’ll discuss what should go into the report in our post on question #4.  Metrics help you understand costs, how to save them going forward, how to leverage what you are doing across matters and how to do things more efficiently.  If you use two different providers on two different matters, how do the costs compare?  Metrics also allow you to budget better for discovery going forward.  Stop salivating.  I know you want better budgeting, but you have to do the work first.

There are hundreds of decisions that happen in the scope of this eDiscovery process framework, and many different paths to follow.  We’ve included multiple checklists in the eDiscovery Assistant app to help you with this process, so check them out.

Make sure that your firm  has a process that it follows consistently that leverages what you have in place internally and previous eDiscovery efforts.  Within that process, make sure you have the proper management and tracking so you can constantly improve on it.

You’ll do discovery better, save greenbacks and learn more faster.

Better discovery means better business.

Check out our earlier posts in this series:

• 5 Questions to Ask Your Law Firm About eDiscovery
• #1 Who’s in Charge of Your eDiscovery?