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19 Tips for Fixing Troublesome Transitions Between E-Discovery Stages

Created on October 11, 2016


Former Content Marketing Manager at Exterro

Life is Pleasant. Death is peaceful. It’s the transition that’s troublesome. Isaac Asimov

In every process – from data flow to human travel – transitions are a place of difficulty. Data flowing through cables can slow or stall when it’s split through junctions and routers. If you’re traveling by air, the layover is chock full of potential problems; and if you’re traveling by car, even the quickest of pit-stops slow you down more than you know (we won’t even mention the transition of merging on and off of the freeway).

In today’s competitive legal market, many legal teams are looking to streamline their processes, especially when it comes to E-Discovery, and much has been done over the last few years to accomplish this by automating systems and leveraging technology to help with data management and search. And while focusing on streamlining the different stages of the e-discovery process is a great way to gain consistency and lower costs, there is much to be said about looking for ways to gain even more efficiencies and cut e-discovery costs in the transitions between those stages, before getting to the most expensive e-discovery stage: document review.

In a recent E-Book, 19 E-Discovery Best Practices for Fixing Troublesome Transitions Between Stages, Exterro has put together a series of tips and best practices to smooth out those bumps that fall in the gaps between the well-defined parts of your e-discovery process. Here are some highlights:

19 Tips for Fixing Troublesome Transitions Between E-Discovery Stages

Transition #1: Information Governance to Identification

7 Tips on Leveraging Information Governance to Streamline Identification:

According to Forrester Research Group, 89% of IT/Legal professionals stated that they plan invest more in information governance (IG). While it is clear that IG is becoming a bigger corporate objective, it's still unclear if and how legal will leverage these new IG initiatives. Yet we'd argue legal teams must be well educated about IG and learn how to properly use these new policies and protocols for their advantage within e-discovery activities.

These 7 tips can leverage data in the information stage to make it easier to find where relevant ESI may be stored:

  1. Know Your Data
  2. Bring Records Management into the Conversation
  3. Bring Records Management into the Conversation
  4. Organize Data as it’s Being Generated
  5. Create a Risk Analysis for Data Accessibility
  6. Develop a Solid Working Relationship with IT
  7. Create an IT Data Map for Legal

Transition #2: Identification to Preservation

5 Questions to Ask During Identification for Smart Preservation

One thing most legal professionals know is that no two cases are alike. If you ask an attorney a legal question, the usual answer is “it depends.” To follow that same mantra, e-discovery professionals should not use the exact same preservation approach for each case, but they should follow a repeatable process in order to show they have met the reasonableness standard. By asking the right questions in the identification stage, you can create a reasonable, proportional, and defensible preservation strategy.

Here are 5 questions your legal team should ask when developing a smart preservation approach:

  1. What Data Types Are We Required to Preserve?
  2. How Much Responsive Data is Potentially Out There?
  3. How Can We Get to this Responsive Data?
  4. What Are the Different Preservation Methods Available to Us?
  5. What Are Best Practices for Picking a Proportional but Defensible Preservation Strategy?

Transition #3: Preservation to Collection/Processing

6 Ways Your Preservation Strategy Should Influence Your Collection Approach

Whatever you do for preservation, it will affect what, when, and how you collect data for review. The high-level goal in regards to preservation is avoiding sanctions; more accurately, the goal is to preserve the data in your custody or control in a defensible way using reasonable steps. In contrast, the goal of collection is to gather the preserved information that will likely be responsive to document requests that would be helpful to your case.

Typically, problems arise with preservation, because, if you haven't done it correctly, there are no do-overs. To counter this, most legal teams preserve everything in-place with a very overbroad preservation strategy, and then conduct surgical collections. But now, with the development of new e-discovery tools, new strategies are emerging.

Here are 6 ways you can leverage new tactical techniques and technology to pinpoint and collect relevant data without boiling the ocean or going on an unnecessary fishing expedition:

  1. Use Early Data Assessment to Refine Your Case Strategy
  2. Consider Tiering Your Collections
  3. Leverage In-Place Searching Before Collection
  4. Negotiate for Proportional Collection Requirements
  5. Create an Audit Trail
  6. Don’t Over-Engineer Your Collections

Conclusion:

Origin stories and dramatic endings are easy: it’s those murky and complex middle acts that define a story as being told with hackneyed cliché or refined nuance. Don’t let the same happen with your e-discovery process by ignoring the ways that you can continue streamlining between steps, bringing your team even more efficiency, cost-savings, and wins before document review.