eDiscovery Daily Blog

• May 15, 2017

Get your minds out of the gutter – I’m talking about the size of your data collection (silly!).  :o)

We certainly have talked a lot about the impact of Big Data and the Internet of Things on this blog as new challenges presented to today’s attorneys, and they are, but challenges have always existed for attorneys in managing data and documents in litigation.  An article from last week reminds us that, regardless of how much data we’re dealing with or where it comes from, discovery is still about strategy.

In Above the Law (Stop Equating eDiscovery With Data — It’s Not That Simple), Kelly Twigger (the author) reminds us of how it was if we go back 10 years (hopefully more like 15, but that’s beside the point).  Remembering (reminiscing?), she notes that we “asked for paper from our clients and the other side, and we got bankers’ boxes of stuff. Then we sat down and went through each page one by one and then we went through them again. And again. We used yellow stickies with handwritten notes, then we graduated to the multi colored Post-it tabs and hoped we could remember what color stood for what.”

Even when we started using technology, it was Summation where we “paid people to manually code multiple fields of documents (that we reviewed by hand) so that we had a database that told us about the documents in it.”  While it had limited functionality, it was still an improvement.

Kelly notes that while the technology has improved a whole lot, most attorneys “are still conducting discovery as if we still have paper” and she notes “that’s a big part of why discovery of ESI costs so much and you don’t want to do it.”  Like a doctor responding to a patient who says “doc, my arm really hurts when I bend it over my head”, Kelly says “Stop doing that.”  Instead, she says, “start with the endgame in mind — what do you want, where can you get it from, and how valuable is it, versus how much does it cost to get?”

A couple of years ago, I decided to have a little fun and I inverted the EDRM model backwards and wrote a post about how, when planning for your eDiscovery project, it’s often best to work backwards and start with the goals to be accomplished for the end phases and use that to guide your work at the beginning of the process.  For the ESI that you plan to present, it’s important to identify that ESI early (and determine whether it’s in your possession or you need to request it from another party), and you’ll need to determine what ESI you need to preserve and collect to meet your production obligations.  The volume of data that you expect may drive review decisions such as how many reviewers you may need or whether you should consider using Technology Assisted Review to conduct your ESI review.  So, by starting “backwards” and determining your end goals, you can plan for your activities through the life cycle of the case.  Preparation reduces perspiration.

Kelly reminds us what many attorneys should already know, that the “volumes of ESI and the sources you have to search are only going to increase drastically, and your litigation budgets are not.”  Planning, strategy and learning the technology are keys keeping those budgets in line.

So, what do you think?  What do you do at the beginning of a case to ensure success at the end?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.