The methodology in the era of large volume, document intensive cases is to “work smarter” because “work harder” is simply not an option. However, a “smart” e-Discovery strategy is rarely explained in sufficient detail to the client. This change, which is geared toward efficient and cost effective discovery, is not easily summarized.
E-Discovery involves discovery in civil litigation which deals with the exchange of information in an electronic format (often referred to as electronically stored information or ESI). Numerous e-Discovery buzz words are out there floating around: document review outsourcing, third party discovery vendors, cloud-based storage hosting. Our clients always ask the same question: what is the plan? The answer is for your counsel to assemble a team to tackle e-Discovery. Before you think “this plan is starting to sound rather expensive,” understand that this process is actually designed for cost reduction and quality improvement.
Whether your litigation is steered by general counsel, company ownership, external counsel, or a combination of decision makers, client involvement is vital to executing a successful strategy. This team approach can be scaled appropriately to account for the particular case size, team member availability, and the accompanying legal spend budget. The team’s focus is to incorporate e-Discovery best practices into your case.
It is important to define the function of each team member from the start. In some situations, company decision makers may play an active role in the day-to-day management of a case. Alternatively, a “hands off, you handle it” method may be put in place. There are other possibilities, and the roles of team members may, and likely will change during the life of your case. The important takeaway is that the roles must be defined and frequently evaluated.
As your team begins to dig through the mountain of documents that you need to sort through and produce to the opposing party, several tasks will also need to be completed:
- Assemble a Document Management Team (DMT). This can be a group solely within the client’s company or a combination of the client, external counsel and third parties. The goal of the DMT is to serve as the “collective brain” for all documents produced, reviewed and used throughout the course of the litigation. This group will draw on the differing skill sets and experience of the members to get the job done.
- Develop a document review and production strategy. The strategy should include intelligent search terms, case theories and narratives, and team meetings (usually via audio/video teleconference) to execute a collaborative document review process. The strategy will need to be altered periodically as the case changes. It should also consider the best way to present documents in a dynamic and impactful way that will advance your case during depositions, mediations, arbitrations, or at trial.
- Decide on a document hosting platform. Hosting can be done by your company, external counsel or a third party. However, as the amount of documents, emails, spreadsheets, video/audio recordings, etc. can approach multiple terabytes, external vendor hosting may be necessary. These vendors also offer analysis tools, including document filters, metadata tagging and document analytics, which can aid in the review and production process.
- Determine if a third party document review group is necessary. An entire new class of “contract” or “document review” attorneys who are independent from the client and external counsel now exists. These team members can provide significant cost savings during e-Discovery without sacrificing quality of service.
The general plan for e-Discovery outlined above will only work if each team member is committed to the client’s goals in the case. It will also be easier to execute if the Document Management Team has directed the process with these goals in mind from the beginning. The relationship and dialogue between the client and their counsel is vital. Understanding what success means to your client is the first step in this process.