8 Key Takeaways from E-Discovery Day

As a now-veteran (or at least perhaps somewhat less of a newbie) of E-Discovery Days, this being my second, I’m looking back at this year’s version with satisfaction and perhaps a tinge of nostalgia. In e-discovery, there truly are not many opportunities to learn (and network) so much in a single day, packed as it was with activities.

In a single day, Exterro hosted 8 webcasts, but the community as a whole held 19 webcasts under the E-Discovery Day banner, and there were 14 live events across the country. We had participants from as far away as South Africa, presenters calling in from the UK, and all-around excitement in the e-discovery community. Over 3,000 people participated in the day’s events.

We hope you had a chance to attend the live events and webcasts that were most relevant to you, but in case you didn’t—or more likely, in case you couldn’t attend all the webcasts that were interesting to you—we’ve pulled together some of the key takeaways from the day’s events here—one for each of the webcasts Exterro hosted.

1. Have defensible, documented processes in place. In the webcast 2018 E-Discovery Case Law: 3 Different Perspectives, Altria Assistant General Counsel Mike Klein advocated for processes, “It’s worth taking the time to develop good processes and then document them. At the end of the day whether it's getting in a fight over the scope of discovery and whether or not the requests are proportional or whether it's defending a spoliation motion, if you have processes in place that are well documented you can defend your position.”
2. Then educate your team on the process and monitor it! Continuing on the theme of process, retired US Magistrate Judge and Senior Counsel at Dentons Ronald Hedges explains that there’s more to it than just drawing up a process on a cocktail napkin in Ask the Experts: How Much Do I Actually Need to Preserve and Collect? “Educate your workforce on the process, and monitor how the process works. So at the end of the day, you can go back to a court with information that's been lost and say, these are the reasonable steps I've taken. It’s one thing to say, ‘I do this,’ but it’s another thing to make sure it is in fact done.”
3. Think like a trial lawyer during e-discovery. In our Ask the Experts: Find the Smoking Gun Fast webcast, Ralph Losey explained what this means, “Think like a trial lawyer in the very beginning. Know what you’re looking for [in the ESI]. You’ve got to have a target. If you don’t know what it is you’re looking for, you may find it and not even know it… You've got to have your jury instructions in your head when you're reading your complaint. You've got to start really figuring out what are the facts in dispute and what is the smoking gun? What would a smoking gun look like in your case? That's the key thing that most people underestimate the importance of is to clarify your target. What is it you're trying to find? When you do that, you're halfway there.”
4. Experiment with the tools before you need to use them. It’s always a good idea to learn the capabilities of the technology you have, and there’s no better way to do that than by experimenting. In our Ask the Experts: How Do I Collect That? webcast, George Socha talked about the e-discovery capabilities of Office 365 this way, but the lesson applies more broadly. “If you think you are going to want to use those tools, start experimenting with them now. Start experimenting if you can, with your own data. If you're using Office 365 or if you're not, try to set up something where you are. Then begin to see what you are able to do with them.”
5. Plan ahead. Mike Quartararo, Managing Director of eDPM Advisory Services, made sure the audience of the Ask the Experts: Managing E-Discovery Tasks Smarter webcast understood the importance of being prepared. “There are three words that I say over and over every time I talk to anybody and I get a chance to say something. I say plan, plan, and plan. If you do that, no matter what you're doing, if you're trying to write an IG policy, collect data, preserve data, a document review, prepare for trial, whatever it is, if you sit down and give it some forethought, it is the most important thing you can do to manage e-discovery smarter.”
6. Educate your custodians. Effective e-discovery isn’t just about managing legal and IT personnel; it also involves other stakeholders. In our webcast on Getting Your E-Discovery Workflows to Work, Thrivent Financial Manager of Legal Support Alayne Russom explained, “We have people—we call them our serial custodians—the ones that are always seem to be on legal hold for something or another. Make sure they know about the work you're doing... so if you implement a new system and they receive a legal hold from the new system, it's not a surprise to them. They know what their role is and they know exactly what they're supposed to be doing.”
7. The role of technology in the law is only increasing. In a webcast on e-discovery in the news in 2018, Legal Journalists Discuss Top E-Discovery Storylines from 2018, Mindy Rattan, Senior Legal Editor at Bloomberg Law made a critical point for the lawyers in our audience. “You need to understand technology. Part of being competent as a lawyer is to understand technology, and that includes e-discovery. It's not just something that one person in the firm needs to have a handle on. Everybody needs to understand technology to some extent to practice law nowadays, because we are out of the pen and paper era. There's no more typewriters, there's no more carbon copy. Get on board.”
8. Understand your organization’s unique needs. No matter how good a solution is on its own, it has to be right for your organization—and you need to make sure that’s the case. Gene McKelvey, E-Discovery Compliance Manager at Michelin, explained in the webcast What’s on Your E-Discovery Technology Wish List, “Do your homework. Understand what the specific needs are for your organization and apply that to the technology that you want to bring in. Going through proof of concepts or fully vetting a particular vendor or set of vendors is critical to ensuring that not only is there an organizational match between your provider and you, but also that the technology that you're using merges well with the technology in your organization.”

For another perspective on E-Discovery Day 2018, check out the great summary post at our partner ACEDS’ blog here.