The New Normal – Why you should learn about e-discovery

Why do you need to learn more about e-discovery? Your workplace or your client’s workplace is changing. Or has changed. E-discovery project management is the new normal. In fact, e-discovery has been around longer than you think…

Here’s why you should take the time to learn more about e-discovery (adapted from a recent article on integrating e-discovery into normal operations):

  1. Electronic Discovery can be complicated and has created the need to streamline the process and standardize workflow management for defensibility.
  2. Electronic Discovery exposes organizations to a greater risk when repeatable processes are not implemented. According to most industry think tanks, including The Sedona Conference, the best way to reduce risk in e-discovery is through implementing basic project management processes and methodologies.
  3. Between 1995 – 2000, most businesses made the transition from paper to digital in all communications and record-keeping. In 1970, the FRCP included digital documents in their definition of what was discoverable. In 2006, the FRCP revised their rules to specifically reference ESI (electronically stored information), to include documents that were stored, created and used in an electronic or digital format. To be clear, not a lot of businesses managed their information digitally until the late 1990s so the great unmanageable volume explosion that sparked the broader industry interest in e-discovery didn’t show up in litigation matters until a few years later. However, in larger litigation matters, the problem existed by the late 1990s as described in a 1999 article by Ken Withers. The December 2006 FRCP update simply updated the “wording” of the rule that had been in place since 1970 regarding the definition of a document. So I guess, our new normal is really our old normal?
  4. The data explosion is a problem for those who are/were not managing their data well. The downturn in the economy only exacerbated this issue as the unruly data stores found themselves a part of duty to preserve order and discoverable in litigation. Corporate legal department budgets are under increased scrutiny and now are required to follow the same project management methods other business units have followed for years to manage expenses and deliverables. How do we reign in the cost to move discoverable electronically stored information through the discovery machine? Two words: project management.

E-Discovery does not have to be complicated. Learning about e-discovery does not have to be complicated. It simply requires some time and thought on the front end to draw a map that clearly states what needs to be done, when and by whom. Then do it. And keep track of what is being done so that the next time, you are not reinventing the wheel.  Creating and developing a standard operational process for your organization will involve learning about each phase of the Electronic Discovery Reference Model (EDRM) so that you know what needs to be done at a minimum and in the “big picture” sense for each phase.  It’s next to impossible to effectively participate in a conversation about which approach your organization should take in developing or following a standard if you really do not have a clear understanding of e-discovery basics.  It’s both case law and technology. You should learn about e-discovery because the “new normal” in today’s litigation practice requires you to project manage discovery in a way that reduces risk, is defensible and allows your team of great legal minds to focus on strategy and the merits of the case.

 

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