Learning about e-discovery requires both a practical and theoretical approach. We need the practical knowledge to complete our everyday tasks. We need someone to think through the theoretical knowledge in order to improve our everyday practices. There are a few electronic discovery “think tanks” around the country the most notable is The Sedona Conference. Recently, the principles, updates, theories, and ideas coming from the 7th Circuit E-Discovery Pilot Program have taken center stage in leading the charge on a number of e-discovery project management issues of greatest concern. Topics e-discovery project managers should pay specific attention to include:
- discovery conference (meet n confer/ FRCP Rule 26f) best practices
- solidifying the role of the e-discovery or ESI liason (litigation support professionals)
- the work of the technology sub-committee
To learn more about this program visit their website and check out this podcast which provides an excellent overview.
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):
- Electronic Discovery can be complicated and has created the need to streamline the process and standardize workflow management for defensibility.
- 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.
- 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?
- 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.
The Sedona Conference. – Follow this link to the Sedona Conference website to download your copy of their latest publication commenting on proportionality.
Here’s what others have had to say about it so far:
Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery. The commentary (published as a “public comment version”) provides valuable insight and guidance on one of the hottest topics in e-discovery today. Among other things, the publication identifies six Principles of Proportionality, intended to “provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery.”
– Electronic Discovery Law (blog)
The lawyers who really know how to use these new inventions, or have licenses and training to use them, will eventually be able to meet the review deadlines. They will be able to do so without employing an army of reviewers and breaking the bank. That is the brute-force technique now used, dare I say enjoyed, by many law firms today. Clients will eventually awaken from the spell of old paper models, where attorneys eyes on every page is considered necessary. Big corporate clients will eventually stop rewarding inefficiency. In the near future, quality privileged document review may be accomplished in short order. The law firms and corporations that learn how to do this, and how to properly argue proportionality, will have a distinct competitive advantage. They will have a new Patronus to defeat the Dementors. Only they can defeat the Dark Lords and keep their secrets, secret.
– The e-Discovery Team (blog)
Also check out the eDiscovery Journal‘s perspective on this topic
Law.com – 6 Factors Help Avoid an E-Discovery Disaster.
This is a good check list for preparing for your discovery conference with the other side or simply preparing for litigation in general. The six factors detailed in the article are:
- Preserve Relevant ESI – author provides a case example
- Confer with your Opponent – describes importance and practicality of the meet n confer, also provides tips
- Collect Data Intelligently – it is no longer acceptable practice to do this yourself, at a minimum, meaningful supervision is required
- Rely on your Vendor – but be careful not to over delegate to the point that you don’t know what’s going with your project
- Consider using Hosted Databases – there are lots of reasons this is a good idea, probably the best one being that it provides a predictable cost for your budget plan
- If all else Fails, Go to Court – ediscovery project management best practices will hopefully help everyone avoid this scenario and the Sedona Conference’s Cooperation Proclamation strongly discourages discovery disputes but we know that that will happen in some cases so it’s best to be prepared
You’ll find many other checklists for discovery preparation on the internet. This article provides recent case law examples as reference points.
The Sedona Conference.
The Sedona Conference®, the nation’s leading non-partisan, non-profit law-and-policy think tank, is actually doing something about it. Leading jurists, trial attorneys, corporate counsel, government lawyers, and others are signing onto “The Cooperation Proclamation.” By doing so, they are pledging to reverse the legal culture of adversarial discovery that is driving up costs and delaying justice; to help create “toolkits” of model case management techniques and resources for the Bench, inside counsel, and outside counsel to facilitate proportionality and cooperation in discovery; and to help create a network of trained electronic discovery mediators available to parties in state and federal courts nationwide, regardless of technical sophistication, financial resources, or the size of the matter.
You will also find here:
- Judicial Opinions
- Legal Scholarship
- Press Coverage
- Virtual Press Conference
Other resources that discuss the significance and practical implementation include:
The Sedona Conference.
This link will take you directly to the “publications” page on the Sedona Conference website. This will provide you with general information and best practices recommended by the conference. Many of the articles and blog posts referenced here at Learn About E-Discovery use these publications as a primary source so they are definitely worth reading for yourself.
Rearden-Pepper-IfSedonaConfBuilds.pdf (application/pdf Object).
This article provides a good review of the Sedona Conference’s “Cooperation Proclamation” and discusses the value in practical cooperation.
e-discovery 2.0 » Blog Archive » Electronic Discovery, EDiscovery, E-Discovery, Legal Discovery.
This blog posts has several very good external links on the topic of manual ESI collections.
Key learning points include:
- discussion of defensibility of manual collections
- the value of transparent cooperation between the parties
- legal hold instructions