08 Feb 2012

LegalTech New York Pounds Home Theme that Process is Paramount in E-Discovery

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A session moderator at last week’s LegalTech New York astutely pointed out that the “hottest” topics in e-discovery are usually those that elicit the most fear.  It should be no surprise that some of the most widely discussed themes at this year’s conference included e-discovery in the cloud, social media and computer-assisted review. These topics represent a new e-discovery “frontier” in which legal teams are understandably treading very cautiously.

While case law is still evolving around these burgeoning e-discovery issues, the multitude of experts at LegalTech, including judges, lawyers, consultants and other e-discovery luminaries, provided their perspectives and advice. Despite their diverse backgrounds, the message from the experts was surprisingly consistent and succinct: establish a process and stick to it.

In one session, Judge David Waxse reminded the audience that the standard in e-discovery isn’t perfection, only reasonableness. In other words, courts aren’t asking clients to get everything right every time; they’re asking litigants to show that they made a reasonable effort to get it right.

Making a reasonable effort means thinking about e-discovery proactively, developing a comprehensive plan, and creating and managing a repeatable workflow. It may sound simple, but as e-discovery expert Brett Burney points out in his recent article, “Right-Thinking E-Discovery Project Management,” it’s still a novel concept in the practice to law. “Lawyers are trained to analyze and strategize — not to categorize, prioritize, and quantify,” Burney writes. “The practice of law isn’t supposed to be something that can be stripped down to a ‘process’ like you would find in building a house or developing a program. In fact, the very notion disgusts just about any classically trained lawyer.” While it may go against the legal grain, treating e-discovery as a repeatable business process is precisely what judges, like David Waxse, are asking of litigants.

So, what does an e-discovery process look like? Unfortunately, there isn’t one model that fits every company. An organization’s e-discovery process must directly reflect its own unique challenges and needs. Even within each matter, the process will often need to be adjusted to account for the changing circumstances of the case. One of the growing trends in e-discovery is the deployment of technology that helps legal teams manage the many moving parts that comprise e-discovery projects. Unlike “point tools,” which are made to address disparate steps in the e-discovery workflow (e.g. collection or review), software with built-in project management capabilities is designed to deliver visibility into the process as a whole by providing task details, timelines and key metrics, while also helping to coordinate various e-discovery activities.

To learn more, view Exterro’s most recent webcast, “Implementing Effective E-Discovery Workflows Between Inside & Outside Counsel.”


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