The litigation team has long been the source of support to the litigators themselves. Back when I still worked in the firm, if my attorney turned around to look at me in the courtroom, I knew I’d better have exactly what he needed waiting in my hand with no words exchanged. In order to provide that type of service, the litigation team must track everything. We track deadlines, when depositions are scheduled, when we receive the deposition transcript, whether the documents from the subpoena have been returned, and what is the next Bates number in the sequence. Some might argue that a good support staff has a better tracking system than Federal Express or UPS! Now in the era of e-discovery, the way you track and what you track might have to be different.
Have you ever heard the term, “you don’t know what you don’t know”? That seems pretty straight- forward and obvious, of course! I’m pretty comfortable with a variety of matters and circumstances that surround me on a daily basis, but is this because I don’t know what I don’t know? For example, I’m comfortable with the method in which the schools in my community prepare and subsequently test the students. I assume that the teachers have followed the framework for the exams, that students are adequately prepared, and that they are conducting the tests in a quiet atmosphere. Then maybe I have the opportunity to volunteer at the school and really see what is going on behind the scenes. Suddenly, I have new information to consider and process. And now maybe this new information (It’s not quiet, it’s noisy. The children seem unprepared for the testing material, etc) leaves me uncomfortable with the circumstances. The blinders are off and I now know enough to be concerned. Now let’s apply this to your current e-discovery processing tracking system.
Are you aware of the process for “Processing” and did you know that there are a variety of decisions to be made about how discovery is processed? Often these decisions are arbitrarily made for you because vendors assume that they know best and that you don’t really want to know what they are doing anyway. And actually, they’re right! Your attorneys often will not care about how the data is handled and leave it to others until it matters – or until something goes wrong…
It is impossible to track every single detail and decision about each wave of discovery. But documenting major – or even medium major- milestones and decisions is of paramount importance. You should structure your tracking system so that you can access documentation of decisions that were made and ‘break it down’ in layman’s terms for your attorneys at a moment’s notice – just like having a key document in your hand when they turn to you in the courtroom. Here is a list of things you should be tracking regarding e-discovery processing to get you started:
- How much data was there when you started culling?
- How much data was there when you were done?
- What was the ratio of file types?
- What was the ratio of files per custodian?
- Where is the list of search terms that were used?
- How were the Excel files processed?
- Explain how the data was de-duped?
- What happened to files that were encrypted?
- Did you ask for an exception report?
- Who processed the data or how many people worked on processing the data?
Frankly, when I first started working with e-discovery, I was happy to leave it all up to the vendor as well. But now, I know what I didn’t know. More importantly, the type of reporting listed above can be easily generated from the tool being used to process the data. I also now know that in order to support the litigation team, I need to be familiar with this type of tracking and have it readily available – just like any other area of the case I’m managing.
Here’s something else you may want to track, these tools are closer than you think for Summation users!