By Daryl Shetterly
Whenever I hear people lamenting the many ways eDiscovery has ruined their day or their week, I try to dig a bit deeper and get to the root of the problem. Is the problem really an eDiscovery problem or is it a failure by the organization or law firm to properly plan and prepare for the inevitability of complying with eDiscovery obligations?
More often than not the "eDiscovery problem" is really a communication problem, a planning problem or a failure to get the right people involved until it is too late to complete the task without Herculean effort that is disruptive to the organization. Everyone has their war stories, here are a few of the situations I hear of most often:
I could go on and on. The demands of complying with eDiscovery obligations have been around for a few years and they are not going away anytime soon. Therefore it makes sense for corporations and law firms to accept the fact that many cases will have some amount of eDiscovery work to be done.
Having been involved in eDiscovery projects large and small for many years, I have seen first-hand that there is a big difference in both cost and business disruption between an eDiscovery project that is properly planned and managed and an e-discovery project that is ad hoc and reactionary. Too many cases do not have the benefit of a team member that is experienced in the legal and technology issues of eDiscovery to set expectations, educate the team on the tasks that need to be accomplished, develop a plan and keep the team apprised of how changes to the case may impact the workload and timelines associated with eDiscovery.
An eDiscovery project should be managed with the right combination of legal expertise and project management discipline. This begins with a legally defensible plan to identify the relevant custodians and data sources and preserve, collect, process and filter the data. Since most money spent on eDiscovery is spent on document review it is especially important to have the right people and process involved in this phase.
I have seen law firms and corporations charge into a document review project with lots of enthusiasm, but without an appreciation for the people, process and technology infrastructure required to have a team of people review a large volume of documents on a predictable timeline with low cost and high quality - all while accurately identifying privilege, key documents, handling non-English language documents, accounting for and viewing arcane file types and using technology to route documents to the team members best suited (and trained) to efficiently handle that particular category of document. There are more moving parts to an eDiscovery project than most people realize!
Both eDiscovery and project management are complex topics that are not mastered by attending a CLE or reading a few books. Quarterbacking the eDiscovery aspect of a case is best done by someone who has been doing so long enough to see the anomalies and to know how easily the budget or timeline can go off the rails.
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