E-Discovery Travel Guide Prepares Legal Teams for Adventure

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23Aug2016

E-Discovery Travel Guide Prepares Legal Teams for Adventure

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By Jim Gill

end of the road

The e-discovery process is definitely a trip. With each new matter comes new challenges, variables, data types, and key players—both inside and outside of your organization. And like a road trip, it can be a nightmare or a grand adventure. What it boils down to is the perfect mix of planning, flexibility, a good set of tools, and a close-knit group of companions, all coming together to make the journey a success.

That’s why Exterro released their E-Discovery Travel Guide, which provides insight into various challenges you might face on the e-discovery road. It includes pre-trip checklists, expert commentary, and trip stats, as well as strategies and best practices at each checkpoint along the way. Here are some highlights:

GEAR UP! Preserving and Collecting New Data Types

Almost any activity we take part in creates data, and it no longer resides just on email servers, laptops, or mobile phones. Data resides in the cloud, in apps, on social media, in your watch, or fitness tracker.

Creating a process for preserving and collecting new data types takes a collaborative effort between numerous teams throughout IT, Legal, and HR. With the right people and processes, your e-discovery collection activities can quickly adapt to include new data sources.

Observations from the Road:

“Involve everyone in conversations with policy development, and educate them on the need, consequences, and various roles surrounding these policies.” Caroline Sweeney, Global Director, E-Discovery and Client Technology, Dorsey & Whitney LLP.

TRAVEL CHEAPLY: Reducing E-Discovery Costs Without Sacrificing Defensibility

It’s hard to believe that the exchange of electronic evidence in legal matters barely existed 20 years ago. Over the last decade, we’ve witnessed the prominence of electronic evidence grow from a novelty to a routine, mandated practice with significant consequences for missteps. To do this effectively, lawyers need to reduce e-discovery costs without sacrificing defensibility.

Observations from the Road:

ON DEFENSIBILITY

“Documentation is 90 percent the road to reasonableness. You should always know what you did, why you did it, and how it was implemented, with each step documented along the way. If you can go in front of a court and show these things and the reasoning behind them, then that’s reasonableness.” Aaron Crews, Sr., Associate General Counsel and head of E-Discovery, Walmart

THE LONG AND WINDING ROAD: Managing Large Volumes of Corporate Data

Most US corporations have accumulated mountains of data, and, no matter your data management philosophy, your company can effectively manage large data volumes by:

  • Creating a data management system that enables you to know what you have and where it’s stored
  • Taking steps for defensibly deleting data you no longer need
  • Leveraging techniques for aligning your information governance policies with your e-discovery process

Observations from the Road:

“Big Data doesn’t occur overnight. It takes years and many employees to create it. Add company turnover to the equation — be it through promotions, downsizing, retirements, or other internal transitions — and that’s when information gets lost. Because of the long time frame and the multiple people involved, most companies don’t even know what they have when it comes to data.” Carolyn Durell, Global Head of Records, Novartis

TAKING THE FORK IN THE ROAD: Deciding How and When to Preserve Data

This question of deciding how and when to preserve data is a tricky one. Some collect to preserve, others preserve in-place, while many use a hybrid approach. There is no bright line indicator of when you need to start preserving data when litigation is reasonably anticipated, and judges and courts around the country have used their own discretion to decide when this must be done, and is truly dependent on the circumstances surrounding the case. Following the same process each time can make all the difference when it comes to a successful collection.

Observations from the Road:

ON A HYBRID COLLECTION APPROACH

“Using the simple analytic of putting custodians into tiers, you can lower costs. The hybrid approach is cheaper than collecting everything but more defensible than in-place. You’re getting what you need without it costing a fortune.” Beth King, Lead Paralegal, Vestas

WE’RE ALL JUST FELLOW TRAVELERS: Working with IT and Legal Effectively

This question of how to work effectively with your IT or Legal counterpart is a complicated one, each side coming from very different professional backgrounds. Even in 2016, tension and misunderstanding between Information Technology (IT) and corporate law departments persists. As technology proliferation accelerates, data sets move to the cloud, and personally-owned computing devices (BYOD) are adopted into the corporate culture, advancing the IT/Legal partnership becomes even more essential.

Observations from the Road:

THE LEGAL PERSPECTIVE

“The difficulty comes largely from the fact that litigation is a very small part of what your company is about and an even smaller part with what the IT department is about. The key to getting around this is management buy-in at the highest levels of the company so that when you go to IT and ask for help, they understand that their managers know e-discovery issues have to be a priority as they come up.” Travis Wolfinger, Sr. Attorney, Marathon Petroleum

THE IT PERSPECTIVE

“Ten years ago, Legal didn’t always do a very good job of explaining why they were coming into the IT department and asking a whole lot of questions about what IT was doing operationally. Now we need to mend relationships and explain to a lot of IT professionals why the standards and expectations that are being imposed on them by Legal are important.” David Briscoe, Sr. Director, Consilio

End of the Road:

A lot can come up when you’re on the road, and you can’t plan for everything. Whether it’s dealing with never before seen data sources, cutting costs without sacrificing defensibility, dealing with constantly growing mountains of data, or keeping your team working together smoothly, be sure to keep this travel guide in the glovebox to remind you that, no matter where the road leads, you have a solid process in place that allows you to handle anything that comes your way.

© Copyright 2016.  This article was originally posted on Exterro’s blog.

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