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6 E-Discovery Steps You Should Take to Meet Judges’ Expectations

Created on February 15, 2019

E-Discovery Market Analyst at Exterro

Presumably you understand the basics of your enterprise’s IT infrastructure: your legal and e-discovery technology, your HR systems and integrations, your asset and content management technologies, productivity suites as well. You understand which ones are integrated with your e-discovery technologies, how you implement and manage legal holds, and what your policies are around preservation.

But does your counsel understand them? After all, they’re the ones that will be negotiating with opposing counsel in legal matters. They’re going to have to appear before a judge and explain what you can preserve and produce, what you can’t, and why. At the end of the day, they represent your organization before the bench, and if they can’t do so effectively, there’s the potential for substantial consequences.

In Exterro’s and EDRM’s 2019 Federal Judges Survey, the data clearly delivered a message to attorneys representing organizations before them: Understand your client’s IT infrastructure and cooperate with opposing counsel to make sure you can manage e-discovery without judicial intervention.

The judges surveyed don’t just expect attorneys to have a general sense of the IT infrastructure and policies either; in four questions on IT infrastructure, troublesome issues, technology use, and preservation strategy, well over 90% of judges expected a moderate or thorough understanding of the issues. In fact, one respondent asked, “What part of this is NOT a lawyer’s job?”

For e-discovery professionals, especially litigation attorneys, there are six steps you can take to make sure you’re meeting the judges’ expectations around e-discovery during litigation.

  1. Understand your client’s preservation strategy, e-discovery technology, and potential issues with collection and production.
  2. Know what the judge expects. 62% feel it is very important for counsel to know their expectations.
  3. Involve clients’ IT experts early and often. Judges recognize IT pros are the real experts and expect you to consult with them to identify potential technological pitfalls.
  4. Educate your judge when necessary. They’re not necessarily e-discovery experts and they welcome training sessions and conferences with attorneys and IT professionals.
  5. Take “meet and confers” seriously. They set the tone for the entire e-discovery process—either collaborative and efficient or conflicted and painstaking.
  6. Cooperation with opposing counsel is key. Working together to identify reasonable and proportional e-discovery parameters (83%) proactive communication before the meet and confer (74%) are required components of cooperation.

Most of these steps are common sense, but as is often the case, common sense isn’t always common. In discussing these steps with an IT professional involved in e-discovery, he reminded me, “These points tend to assume that IT is in communication with counsel, but that’s not always the case. [We] have a mediator between our IT department and inside counsel, as well as outside counsel. She understands the counsels’ language and relays information to IT when needed… as Law and IT are different areas, one needs to understand the “language” of another to be able to educate and not confuse.”

Fortunately, there are ways to bridge these communication gaps (as we’ve pointed out in previous articles on this blog). Another great step you can take is to prepare a playbook for your counsel, in which you outline the basics of your IT infrastructure and e-discovery policies and procedures, so you can ensure that they’re representing you effectively before judges.