10 Critical Decisions for Successful E-discovery Part 2
In a continuing series on how to succeed in e-discovery, I’ll be discussing the final 5 critical decisions needed to follow best practices. Part 1 discussed the first 5 critical decisions. To review:
1) Engage qualified individuals proficient in all phases of discovery and evidence, including those pertaining to data management, data integrity, and technology.
2) Determine how much time you have and agree upon deadlines with your lawyer for each phase of discovery.
3) Use a 3-tier system for storage where possible (short term, intermediate term, long term).
4) Decide how to manage all of your data in one place.
5) Understand that 50-80% of your cost will be in the preservation and collection phases, not the review or production.
6) Implement technology that can track and identify all documents in your enterprise. Technology is critical to e-discovery success. Without it, you are operating blind. Your technology must be able to track every document in your enterprise, regardless of the native file format. This means that you need a common application layer (think: Microsoft Office or Adobe Acrobat) to manage all of your electronically stored information (ESI). This common layer should also have a robust search function with ESI tags (think: Bates numbers and other metadata), production scheduling, and workflow features that enable the review team to segregate, prioritize and process ESI through the 3-tier system I mentioned above by case.
Most of the companies I work with use an enterprise content management (ECM) system for this purpose. If you are looking to choose an ECM platform, consider the following features:
Agility – How quickly can you implement and scale? Some systems take a long time to implement and then do not have the ability to scale when your practice or firm grows. This is critical, as this is not a one-time implementation. Your system should grow with your firm and be able to meet future demands for collaboration, accessibility, and scalability.
8. Search – A robust search function with ESI tagging will help keep you organized and track all documents through the 3-tier process while using a low-cost platform like Microsoft SharePoint or Google Drive (if your law office has agreed to use Google Apps). 9. Workflow – Does it integrate with your existing practice management software, eDiscovery software, document imaging software? 10. Backups – Does your ECM platform store backups in a secure location for your firm and its clients with the ability to recover remotely?
The following is an example of how this whole process works in tandem with the E-Discovery vendors I use:
Example: A law firm has a small server that holds all of their ESI where they have decided that they will use SharePoint as the common application layer (CAL) and Microsoft Office as their ESI management platform. They have agreed to use Google Docs as their document management system (DMS) and Google Apps as their e-mail platform. They are using DocuSign as a Electronic Document Archive System (EDAS). The document review team has decided that a 3-tier system is the best way to manage all of their ESI, and they are using a hybrid document review platform with Dropbox, DocuSign and Evernote. The review team uses a tool called HubSpot to manage client communications and use HubSpot Marketing for lead management.
1. First, the software must work reliably and meet all of the requirements of your legal practice.
2. Make sure that proper training has occurred and that your teams have familiarized themselves with applicable DoD (Department of Defense) regulations and e-discovery best practices. Review the list at the end of Part 1 in order to help you determine if this vendor meets your needs.
3. Make sure you know how they will handle your client data and what data and types of documents they can search, segregate and review.
4. Read the vendor’s terms of service, privacy policies and privacy policy amendments to make sure you understand how sensitive information will be protected.
5. If you have multiple lawyers or partners in your firm, you must decide who will have the ultimate responsibility for managing all e-discovery work related to a specific case or matter.
6. What is the lead time (i.e. shortest time period between the initial contact with the vendor and production of documents for a set period) for responding to requests for information and producing documents? What is the lead time for document collection, processing and production?
7. How are costs calculated (i.e. flat fee vs. hourly) when working on a matter or project? Must they be approved by your firm and client before they can be completed? Will there be penalties if you miss a deadline or perform below expectations?
8. What are the most common objections that this vendor has encountered, and how will they address them? Will they negotiate with opposing counsel or opposing parties to resolve these issues prior to filing motions with the court?
9. What are the most common issues that the client has encountered during its use of this vendor, and how will the vendor address it? Will they negotiate with opposing counsel or opposing parties to resolve these issues prior to filing motions with the court?
10.
Conclusion:
Note: I am not an attorney or a certified paralegal, and the information in this document is provided solely as a guide to assist the reader in making an informed decision. The reader should continue to conduct their own research and seek advice from professionals, such as attorneys. These are general comments with no legal analysis. There may be situations where a law office or firm does not respond in accordance with the information provided here. Therefore, it is recommended that readers contact with me for verification before proceeding with any action based on what is found here.
This has been a journey of discovery for me, and I have learned much about Law Firms and Legal Practice Management through these experiences.