Implementing Best Practices for Discovery Readiness

Implementing Best Practices for Discovery Readiness

I’ve seen a lot of discovery readiness approaches come and go with the times, and the electronic workplace presents new challenges to adequately and efficiently find and cull data. We recently studied the issue in depth; the outcome was an 80% ROI. We did it by utilizing the right technology for the right reasons, identifying duplicated review practices and what I call my three-pond method.

Even though we handle a fair amount of discovery readiness in-house, it’s still hard to justify devoting a huge amount of resources toward this phase of a suit. So we found a reliable vendor to handle specific tasks, especially staying on top of which technologies work and which ones don’t. The market is filled with expensive ‘whiz-bang’ systems, while others are reasonably priced but don’t work. Now that we have a trusted vendor—someone I knew from previous work—Qwest® avoids the expense of accidentally investing in the wrong platforms. We even have the cost boiled down to a measureable rate per megabyte. We do license technology internally but only after it’s proven its worth.

For those companies who want to save money on in-house discovery readiness, I recommend starting with e-mail. It’s amazing how many large law firms don’t implement de-duplication efforts. After culling down, Qwest reorganizes data to prevent more than one reviewer unnecessarily reading the same documents. Near ‘dups’ are grouped for one reviewer, too, and e-mail threads are gathered into one train rather than studied in bits and pieces. Finally, e-mails that relate to just one small part of a case are identified and grouped together.

But, reviewing documents doesn’t support what I call the understanding phase of discovery readiness, and it doesn’t identify the best use of culled documents for deposition and trial. For discovery readiness to offer ROI, it must group and assign issues and witnesses, then identify whether facts are disputed or not. I insist I’m not trying to tout LexisNexis when I report CaseMap® software delivers best on these tasks!

For discovery readiness to be cost-effective, it must allow reviewers to revisit data ‘ponds’ in three distinct ways: for depositions, for summary judgments and for trial prep. You’ve got to bridge all three ponds, and refine them over time so you can re-access them in an evolutionary way.

When Qwest identifies best-practices, it mandates they be used both in-house and by outside collaborators, although in-house and outside support aren’t used simultaneously. For litigation holds, we rely on a Web-based automation process, including record-keeping of employee commitment and follow-ups if no response is logged. If you send out hold directives without instituting a system to monitor compliance, you might as well not send them at all. Also, set up a way to prevent additional pitfall: what happens to drivers, computers and document inventories when systems are replaced or employees leave?

I predict continued improvements to discovery readiness technology, including artificial intelligence and ways to apply tools to the due diligence process in transactions. My ultimate goal? I challenge in-house litigators to deliver facts in a box with a ribbon on it. We’re close but we’re not there yet.

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