Learning To Play The Game Right: Taking On E-Discovery With An Action Plan

Rick Dempsey, World Series MVP for the 1983 Baltimore Orioles, once said, “You have to play this game right. You’ve got to go on doing the things you’ve talked about and agreed about beforehand. You’ve got to concentrate on each play, each hitter, each pitch. All this makes the game much clearer. It breaks it down to its smallest part. If you take the game like that, the next thing you know, you look up and you’ve won.”

This approach to success, in my opinion, applies to pretty much any major undertaking. You’ve heard it echoed in any number of situations: a long-distance hiker breaking down the Pacific Crest Trail into short segments between water sources and camp sites; a novelist breaking the work down into a certain number of words per day (Steinbeck wrote The Grapes of Wrath by writing a thousand words a day for a hundred days). Any gargantuan task can seem doable if, instead of looking at the whole, one breaks everything down into basic processes and goes through each with extreme focus.

Recently, I’ve read a few articles where people view E-Discovery as something rivaling the labors of Hercules. And in many ways, it’s true: in a recent survey, 39% (the largest group of respondents) said that searching through large amounts of data was the biggest obstacle they face in locating responsive data. Which is understandable considering the staggering amount of Electronically Stored Information (ESI) that we create (FYI: 160 filing cabinets = 10GB thumb drive).

So how does one play the E-Discovery game right? “Just winging it” is not an option. Instead, having an action plan in place before a legal hold helps avoid the high costs associated with inefficient discovery, as well as possible sanctions from the court, and gives your legal team an edge when time is against you, and Exterro’s E-Discovery Action Plan does just that by breaking E-Discovery down into tips and checklists. Here are a few excerpts:

• Information Governance/Data Identification: Don’t Bite Off More Than You Can

It’s better to think of information governance as a marathon and not a sprint. You are better off prioritizing activities, focusing on the key areas first, and then building out an IG program over time.

• Preservation/Legal Hold: Leverage Custodian

It’s rarely clear in the early days of a matter which employees have relevant documents or the key issues underlying the matter. A good place to start is going straight to key custodians with a good interview process marked by a simple, consistent questionnaire and a clear process for aggregating responses.

• Early Case Assessment: Come To Meet and Confers

Many litigants brush off court-mandated meet and confers with opposing counsel as a legal formality. A strong ECA process should equip you with enough actionable hard data leading into the meet and confer to counter disproportionate e-discovery requests from the other side.

• Collection and Processing: Create Collection

Overcollection is one of the leading drivers of exorbitant e-discovery spending. One way to avoid collecting too broadly is to tier the collection so that the most relevant custodians and data are targeted first and the lower tiers are only brought into the collection plan as needed.

• Review: Utilize Federal Rules to Protect Against Privilege

Some estimates suggest that reviewing documents for privilege typically consumes 80% or more of the review budget. Federal Rule of Evidence (FRE) 502 (d) allows parties to enter into non-waiver agreements so that privilege remains protected even in the event that privileged documents are turned over to the other side. FRE 502(d) won’t eliminate the need to conduct privilege reviews but they can help you streamline the process so that it’s not quite so costly.

• Project Management: Create a Crossfunctional E-Discovery Response

For any project—e-discovery or otherwise—there needs to be organization, accountability, and clear expectations. That can be hard to achieve when projects span multiple departments, each with its own distinct perspective and work culture. An e-discovery response team comprised of a single member or small group representing each department will ensure that processes align with larger business goals and don’t disrupt other activities.

So learn to play the game right. Have an Action Plan. The next thing you know, you’ll look up, and you’ll have won.

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Jim Gill is the Content Marketing Manager at Exterro, Inc.