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Implementing Savvy E-Discovery Practicesby Chris Spizzirri
I consider myself fortunate: I’ve been able to take my two favorite subjects—the law and computers—and forge them into a career. It was the emerging frontier of e-discovery that allowed me to do it. As I watched firms struggle with managing the challenging—and exciting—task of effectively incorporating e-discovery into case preparation, I saw key missteps that led to losing critical data and unnecessarily increasing costs.
You might think those missteps occur around the design of computer systems or search semantics and culling—and they do. But, what I soon learned was that education is half the battle. That not only means advising all types of data custodians but also IT professionals—and sometimes even opposing counsel—about the process of e-discovery.
As the courts become more attune to e-discovery issues, my job may get easier, but Delaware remains one of a few states that presents limited guidance for this new arena. So the entire design and execution processes falls under Morris James’s responsibility when we’re contracted as outside counsel to manage and execute e-discovery.
The biggest initial challenge is overcoming the fact that client computer structures grew organically and without regard to e-discovery tasks. No one thought how the typical "patchwork" of IT systems would affect e-discovery, especially the disparate approaches you find across business units.
So, my number one rule is to ask the right questions of the right people. How are your e-mails and memos stored, not only on your own computer, but in other places within the company on network servers? Do you do work at home on a thumb drive? What specific organization methods do you use daily to organize your documents? How can you help me target individual folders as well as network shares? Sometimes custodians simply don’t know these answers, so we must address a plan for each separately. It’s like peeling back an onion, and there’s no substitute for asking the right questions.
It’s surprising, but we find a lot of resistance from IT professionals who think they could be launching searches that cover e-discovery; they simply don’t understand e-discovery mining differs from routine data searches. We have to explain to them e-discovery is like a deposition; if you miss something crucial you can lose a case even when you’re solid on the merits. Employees must understand mishandled data and self-collection can lead to millions in fines.
Litigation holds and culling present a whole new set of challenges. It’s not good enough to have a "floating" hold. Most holds are issued by our clients, but we help draft them. After identifying the broadest range of custodians, acknowledgments are tracked and so are reminders about hold procedures and requirements. We’ve also been able to incorporate statistical modeling to manage and cut costs in e-discovery. If we identify statistical significance in random samples, we are better able to control quality and assess the content of large data volumes.
Established project and quality management practices, like Six Sigma, play a role in productive e-discovery. Unless we can standardize processes and squeeze out errors, we’ll eventually see a law of diminishing returns from even the most successful e-discovery tactics.
There’s one question I’m often asked by custodians and even my own firm’s employees: If there are just one or two e-mails that might affect a case, do I need to worry? I answer with a resounding yes, because the pain is in finding those one or two emails. Even one document can cause a nightmare in court, which leads me to the most critical e-discovery rule corporate counsel should never forget: Any written discovery will always involve e-discovery.