By design, discovery is about seeking the truth: searching for verified information that has bearing on the merits of a dispute. E-discovery takes it to a much deeper level, identifying potentially long-forgotten, yet valuable and relevant, troves of electronically stored information. We are all aware of the costly and time-consuming endeavor e-discovery can become, but it should not be treated as a hefty weight tossed onto the scales of justice to give sway to the party who can struggle against it the longest. How can you ensure a more streamlined, efficient e-discovery process?
Consider these five tips to maximize the efficacy of your e-discovery process.
1. Be Strategic. When appropriate, utilize the latest e-discovery technologies, such as technology-assisted review, to achieve cost-effective, high-quality, defensible results. Increasingly, judges are recognizing and supporting the capabilities of technology-assisted review, also known as predictive coding, to identify discoverable information rapidly and efficiently. Embrace and delve into strategic searching capabilities as a complement or alternative to technology-assisted review to increase the speed and accuracy of your review. Keep in mind though that certain tools and technology are appropriate for some cases, but not all. There is no “one-size-fits-all” approach in e-discovery. The best approach is to assess the size, scope and details of a matter, and then decide on the most appropriate tools to apply in order to achieve an optimal end result.
2. Be prepared. At the outset of any e-discovery project, define its purpose, scope, goals, and specific, identifiable steps to achieve your objectives. Enlist expertise from a variety of departments within your organization (i.e., IT, records management, compliance) to help your legal team and subject matter experts achieve optimum results. You might also consider enlisting the help of specialized expertise; for example, a statistician to assist with the design and sampling of a technology-assisted review project. When all team members understand the underlying goals and methodological principles behind an e-discovery project, the end result is a more productive and efficient process.
3. Be thorough. Benjamin Franklin is credited with the maxim “An ounce of prevention is worth a pound of cure.” Remember these words as you prepare for your next e-discovery project. Do not allow your e-discovery project to be derailed by the idea that allowing custodians to self-collect will save money. While it may seem that custodians are most familiar with their own documents, laypeople often are not equipped with the technical skills, the legal know-how, or the thoroughness to defensibly collect a complete data set. Engaging the help of qualified IT professionals for this crucial stage of e-discovery can help avoid potential issues later in the process.
4. Be cooperative. At the outset of your e-discovery project, and to the extent possible, engage your opposing counsel and craft a working set of definitions and parameters for handling the matter. By doing so, you can avoid wrangling over misunderstandings, unnecessary motions, and escalated disputes, all the while engendering the goodwill of the court, which will appreciate having fewer discovery disputes to referee.
5. Be secure. Inadvertent disclosure of sensitive and confidential information can be costly and catastrophic to a case and your organization or client. When managing e-discovery in the cloud, consider what authorization, authentication and permission mechanisms your provider has in place; whether your data is hosted in a private or public cloud; what audit capabilities and chain-of-custody processes and protocols are followed; what physical security measures are in place at your providers data center(s); what regular third-party security testing and audits your vendor regularly employs; what disaster recovery and redundancy practices are in place; and how your data will be handled when a site is decommissioned. It’s imperative that you work with a vendor that takes the security of your data as seriously as you do.
By adopting best practices such as these, you can mitigate risk, better manage e-discovery costs, and build a more efficient, secure, and defensible process for handling your e-discovery projects.
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