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I Love It When A Plan Comes Together: 7 Tips When Creating An E-Discovery Action Plan

Created on January 20, 2023

Legal GRC Market Analyst at Exterro

Having a plan of action when facing unforeseen events gives everyone involved a feeling of security and safety. In case of fire, we know the exits, meeting places, and the all-clear signal. When contractions are five minutes apart, the suitcase is packed, the car is running, and the hospital's check-in process is memorized. So when a legal hold is initiated against your company, are you prepared in the same way?

E-Discovery can be complex, time-consuming, and costly—“just winging it" is not an option. Having an action plan in place before a legal hold helps avoid the high costs associated with inefficient discovery, as well as possible sanctions from the court, and gives your legal team an edge when time is against you. The following tips, along with Exterro's updated E-Discovery Action Plan, can give you the confidence of knowing that you won't be caught off guard when the time comes.

Information Governance and Data Identification Tip: Don't Bite Off More Than You Can Chew

It's better to think of information governance as a marathon and not a sprint. There is a temptation to want to do everything at once, but too much change can disrupt existing business processes and erode executive support. You are better off prioritizing activities, focusing on the key areas first, and then building out an IG program over time.

Preservation and Legal Hold Tip: Leverage Custodian Knowledge

It's rarely clear in the early days of a matter which employees have relevant documents or the key issues underlying the matter. A good place to start is going straight to the source with interviews of key custodians. A good interview process is marked by a simple, consistent questionnaire and a clear process for aggregating responses.

Early Case Assessment Tip: Come To Meet and Confers Prepared

Many litigants brush off court-mandated meet and confers with opposing counsel as a legal formality. A strong ECA process should equip you with enough actionable hard data leading into the meet and confer to counter disproportionate e-discovery requests from the other side.

Collection and Processing Tip: Create Collection Tiers

Overcollection is one of the leading drivers of exorbitant e-discovery spending. One way to avoid collecting too broadly is to tier the collection so that the most relevant custodians and data are targeted first and the lower tiers are only brought into the collection plan as needed.

Review Tip: Utilize Federal Rules To Protect Against Privilege Waiver

Some estimates suggest that reviewing documents for privilege typically consumes 80% or more of the review budget. Federal Rule of Evidence (FRE) 502 (d) allows parties to enter into non-waiver agreements so that privilege remains protected even in the event that privileged documents are turned over to the other side. FRE 502(d) won't eliminate the need to conduct privilege reviews but they can help you streamline the process so that it's not quite so costly.

Project Management Tip: Create a Crossfunctional E-Discovery Response Team

For any project—e-discovery or otherwise—there needs to be organization, accountability, and clear expectations. That can be hard to achieve when projects span multiple departments, each with its own distinct perspective and work culture. An e-discovery response team comprised of a single member or small group representing each department will ensure that processes align with larger business goals and don't disrupt other activities.

Final Thoughts about Preparing for E-Discovery

E-Discovery is ultimately a continuum of processes that need to be implemented in concert to produce a satisfactory, and hopefully repeatable outcome. The efforts that go into implementing these processes pay themselves back quickly with recovered time and reduced overhead. Don't wait until a legal hold notice hits your inbox before putting together a strategy: Download Exterro's E-Discovery Action Plan today.