Today we welcome guest blogger Keith Whitaker. Keith is the Vice President of Business Development at LogicForce™ Consulting. I hope this is useful to you!
President and Chief Executive Officer
The e-discovery process can seem arduous and disorganized if your firm and its clients aren’t sure of what to expect in regards to the time constraints, cost factors, and resources involved. Every case and each piece of evidence within a case can vary significantly from the next.
The e-discovery process itself can also change substantially depending on the case’s data sources and the individual document requirements. Any possible changes can make it difficult to keep your clients properly informed as the case progresses.
There are quite a few methods for gaining better control during the e-discovery process, however. Most take place during the early stages of data collection. Here are 10 ways in which you can access more control, become better organized, and help your clients gain a better understanding of what goes on during the e-discovery process:
1. Gather Information before Issuing a Legal Hold
After your firm issues a legal hold which locks in and protects any electronic stored information that’s pertinent to the case, it can be difficult to go back and add additional data, conduct further interviews, or change crucial case information. Making any changes after this point can set back the e-discovery process considerably.
Gather any information you need before issuing a legal hold. This includes knowing who the key sources are as well as anyone else who may have come into contact with the data, knowing who you may need to interview, and creating a basic identification plan that focuses on the case’s key players and key data sources. Having access to this information lets you set up a basic cost/time estimate.
2. Manage Expectations
After you have a basic cost/time estimate, you’ll need to inform your client(s) of this estimate and ensure that their expectations for the case, its associated costs, and its expected time of completion are realistic. Clients are often extremely unaware of how cases typically progress when digital data is part of the information-gathering process. Help them become aware.
3. Preserve as Early as Possible
The data preservation step is one of the least expensive steps in the e-discovery process, but it’s extremely crucial in order to ensure that all potential evidence remains intact. Perform this step as early as possible to prevent any chance of spoliation. Cast a wide net to cover all data points that might come into play later on during the case. When it comes to reviewing said data, you can narrow the scope and become more specific.
4. Know Your Data Sources
Identify all of your data sources as early in the e-discovery process as possible. Make sure no sources are overlooked. This includes any unconventional electronic sources like digital cameras, copiers/scanners/fax machines, and camera watches.
5. Remember the Difference between E-Discovery and Digital Forensics
Once you know the exact data sources you’re working with, it becomes much easier to identify whether you’ll need to employ e-discovery methodology or digital forensics in order to process the electronic data. The difference is rather simple. With e-discovery, you’ll be primarily dealing with active digital files/records. With digital forensics, you’ll be focusing on recovering data that is no longer available.
6. Prioritize Custodians and Data Sources
Before the data collection process begins, it helps to draw out charts that place all of the different custodians and/or data sources on different priority tiers. Next, create a priority list using these tiers. This list will aid in identifying which data will be the most pertinent to the case and can save your firm both time and expenses.
Identify the sources/custodians that have the most to potentially offer and collect data from those sources first. Leave the sources with the least to offer for last. If a particular source seems unlikely to yield useful data, you may not need to consult that source at all.
7. Utilize Document Filtering
Document/data filtering takes the collected data and filters it before the processing phase, getting rid of duplicate data and files and programs that are deemed completely unnecessary to the e-discovery process. This process is one of the best ways to directly control how much your firm spends on data processing.
8. Challenge Unfair/Unsound Opponent Tactics
It’s always a good idea to keep an eye on what methodology and tactics your opposing side is utilizing. Challenge any tactics that seem unfair or unsound. This includes any data preservation methods that seem improper/insufficient. Test claims that seem unsound such as claims of data not being reasonably accessible.
If you need to negotiate any e-discovery methods, it’s best to agree to refine overly broad search terms and consider alternatives for excessively large collections of responsive data. The narrower the field your opponent has to work with, the fewer chances they have of finding any possible loopholes.
9. Use Early Case Assessment
Early Case Assessment (ECA) software can be a large aid to help you narrow down which documents will be the most pertinent as well as which pieces of data will matter the most as the litigation process continues. The most vital benefit might be an early peek at the collected data itself. This lets you refine the search criteria and exact terms used. Such refinement can cut down considerably on any inherent risk factors.
10. Plan Review Strategies during the Onset of a Case
Before you begin the first stages of the e-discovery process, plan out what review strategies you and your firm will apply. It’s a good idea to build a review team early on and assign duties as well as determine who will gain access to the responsive documents needed for review. Decide whether you’ll review responsive data via an in-house review platform or a hosted web-based platform.
Finally, it’s a good idea to plan out how the production phases will be handled. How much time will need to be allotted for each of the review/production steps? Planning for the review stages early on during a case can save you the hassle of having to toss a review team together at the last second.
In order to make any given case’s e-discovery phase as cost-effective and time-effective as possible, each stage, process, and data source must be thoroughly planned out and precisely controlled. LogicForce Consulting’s 6-phase e-discovery program, for example, consists of fully-developed plans for each phase that focus on helping your firm and its clients experience an e-discovery process that leaves zero room for error.
Your clients depend on you to help gain a better understanding of what goes on inside the courtroom and out. Deliver that understanding with as much control and precision as possible and you’ll easily win the trust of your clients—as well as your cases.
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