I don’t know one person that enjoys participating in something they aren’t very good at. I roll my eyes every time we visit some friends that want to play Trivial Pursuit. The reason I frown at playing that game is because I’m not very good at it.
The first part of my career was focused on medical malpractice cases and I learned medical terminology because I needed to understand case facts and review discovery. The second part of my career focused on construction law and, again, I only learned how to read blueprints because I needed to understand the facts of the case. Now think about how the average attorney felt when they realized they were at the top of their game; a seasoned litigator in a specialized area of law, and then came along e-discovery. They were experts but the rules to the game changed.
Whether you are reading this post as an attorney or support staff, take a few moments to think about the percentage of people in your office that really have a handle on e-discovery. I would guess that there aren’t many, and argue that the reason so many people are not e-discovery proficient is because they don’t like it due to the fact that they’re not good at it.
Understand that ESI is not going away and that the size of stored data is growing faster than you can imagine. In order to get started getting a handle on this, exercise the same rules you would before a jury and keep it short and simple. We wouldn’t be moving in a direction involving so much technology if it didn’t somehow compare to what we are already familiar with. Consider your file cabinet containing labeled folders. We are comfortable in this work environment because we know where all of the files are, it’s structured and we know what is in each drawer. Documents are likely organized by label and filed chronologically. We know that we have filed the most recent final copy, there is likely only one copy in the file and that similar documents are likely grouped together in the file cabinet. What I have just described maps exactly to the following terms: “data map”, “electronic chain of evidence”, “PST format”, “threading”, “pivot documents”, “near dupe analysis”, “sort orders” and “de-duping”. So you already know and understand some pretty complex concepts within e-discovery. To learn more, keep it simple and start with these steps:
Number 1: It is your duty to know where the evidence is and how to find it. There are many resources including courses, blogs, articles, seminars, and books to choose from in order to educate you on how to locate data. Instead of overwhelming yourself, realize and accept the fact that you are never going to learn everything there is about e-discovery. Take baby steps and change one thing you do in your daily practice: sign up to read a daily blog, commit to a monthly seminar, pick up a book on e-discovery.
Number 2: When exploring ESI it is impossible to look at the budget assigned to the case and then compare it to what the case is worth without some type of metrics. A very simple metric to start with is the sheer volume of data, (the documents). Once you can identify the volume, you’ll no doubt look for ways to reduce the size of the data and inherently learn about the technology available to assist you.
Number 3: Communicating electronically is the method of choice. It is possible to find a harmful email but you are just as likely to find a good email to support your client’s claims. It is important to weed through the data to find the relevant evidence. Be proactive instead of reactive and read your client’s email in order to familiarize yourself with the lingo and the likely terms that are used. The attorneys in the Enron matter would not have learned about “pump and dump” or “rank and yank” had they not done the reading. By filtering through some of the key custodians’ emails, you find key words to assist you in testing samples of data and getting closer to finding that needle in the haystack. Technology that can help you with this includes filtering, facets, white box searching, black box searching, clustering or predictive coding.
Number 4: The involvement of the client and the entire litigation team is crucial and, if absent, has a negative ripple effect as you move through the different phases of the case. Guessing games by the support staff during these phases can prove to be expensive and invite remedies down the line as the attorney eventually comes to understand the data, the volume, and what steps are necessary to review and produce it. More importantly, if the attorney is uninformed about how important these decisions are; they are equally uninformed about how to form their requests to clients or opposing counsel. E-discovery is just a blend of two professions, legal and IT. It can only work properly when those two teams can work together, have some understanding of each other’s profession and communicate effectively. Look for experts to rely on not only in the industry, but in your own office, and share your experiences with one another. This will allow you to build a bank of information to streamline these processes in the future and learn about new ones. Don’t be afraid to stop and ask questions about new terminology and what effect decisions you are making have on collection of documents, culling of data or review.
Number 5: There is no cookie cutter case involving e-discovery. Tracking the data and decisions you make during the various phases of the case are very important if opposing counsel decides to challenge your process two or three years down the road. If in the event there is a dispute between the parties, maintaining a toolkit and developing documentation regarding these procedures based on tools and technology available at the time will speak highly to the court. A good example of this is baseline checklists for every phase of the EDRM [www.EDRM.net].
Remember, although no one in the legal industry prior to e-discovery actually signed up to be an IT professional, in order to play the game and represent clients well, you have to take the necessary steps to understand computers, computer files, new terminology, and most importantly, be open to the idea of change.