Early in my career, I worked on an arbitration that challenged the effectiveness of a claims administration company. I sent our client’s expert witness five audits of the company, a fact I noted in the cover letter. Unbeknownst to me, there were six audits—and the last one was not favorable for our positions. While this error was later corrected, my “five audits” expert letter was a very popular exhibit for the opposing counsel. This was my tangible object lesson to avoid the process getting tangled up with the merits.
The eDiscovery process is designed to uncover the relevant case facts. Everything progresses toward this presentation of the material factual disputes to a factfinder. Because this is eDiscovery’s ultimate purpose, we are going to start our discussion of eDiscovery phases at the culmination of the process: the presentation of the evidence.
For each of the case phases, we are providing a list of the top five areas to find value and increased efficiency. Here are the top five on presentation:
- Key Documents Analysis. For exhibits that are used in deposition or trial, how early were those identified for analysis?
- Locating important documents early in the eDiscovery process is a key value-add. This facilitates an analysis of the case merits and, if appropriate, settlement. Litigation avoided is a key budget reducer.
- Defensibility of the Process. Is the process you used to produce documents sufficiently documented such that you can quickly and accurately make any needed representations?
- Understandable documentation can be used to prepare for depositions and trial. It avoids costly re-work and ensures accurate representations regarding the process.
- Useful Production Format. Was the production made (and received) in such a way that it facilitates both investigation and presentation?
- The production must be searchable and facilitate presentation. Early negotiation of the production format should occur with an eye toward how that information will be used in deposition, motion practice, and trial.
- Discovery Motions. What is the quantifiable outcome of any discovery motion practice?
- Discovery motion practice, while a necessity in certain situations, can be costly and distracting. Quantifying the cost of eDiscovery motions, and then weighing that against the desired results, is a key value question.
- Lessons Learned for the Next Matter. Has all information been captured to the extent that it will make the next eDiscovery project more efficient and less distracting?
- Determining which strategies were successful and which were not to prepare for more efficient discovery in the next matter is the key to reducing eDiscovery spend year after year.
