Partnering with eDiscovery experts means better business

By Prof. Danny Myburgh, Managing Director at Cyanre – The Digital Forensic Lab

Is your law firm doing better eDiscovery than the current industry standard? Do you know what you are spending your money on? With eDiscovery as the single most significant cost in litigation, it’s critical to ensure that your legal team follows eDiscovery best practice and partner with experts to solidify your case.

eDiscovery is not a one-size-fits-all solution, and Electronically Stored Information (ESI) disputes certainly shouldn’t be handled only as the need arises. eDiscovery is a niche practice area, but it’s also one area where, if done correctly, it can cost less and get you a legal resolution faster.


A look at the eDiscovery process

To ensure that your legal firm follows best practice, first understand what the eDiscovery process should look like and then have the right discussions with your litigators. We’ve outlined the process below from the perspective of a legal firm working on an international case.


Step 1: Determine what is needed for preservation and production

This is the single most crucial step in the process as it shapes what the rest of the process will look like, yet it is often overlooked. Ideally, the discussion should include members from the trial teameDiscovery counsel and the client. This will keep the scope of discovery focused and not broader than it needs to be for the case – remember, eDiscovery is your biggest cost, so the scope is essential. You also cannot be too prescribed so that you miss crucial documents.


Consider the following:

  • Who is the judge, and how have they treated eDiscovery issues in the past?
  • What is the case about factually? What does the legal team want to prove or disprove?
  • What is the scope of preservation and the specific strategic reasons for the scope that should be considered for the case? The scope should be communicated to the other side – who will do so and when?
  • Who will implement and manage preservation at the client? This will require specific systems and processes to facilitate preservation and collection.
  • What systems are being used, which steps need to be taken for preservation and what will those costs be? What cooperation is required from opposing counsel and how can costs be minimised while still ensuring that eDiscovery includes an adequate Electronic Document Review for the case.
  • Identify the key initial custodians to interview.
  • Identify any third parties you need to contact regarding preservation.


Step 2: Start interviewing custodians

Best practice is to have both eDiscovery counsel and trial counsel conduct this interview, led by the eDiscovery counsel. The goal is to discover which ESI needs to be preserved, what the custodian knows, who else is involved, and what’s reasonable for preservation and collection. Unfortunately, there is a tendency to reach more people than necessary. This is why a team approach helps. Focus on the two or three people who know the most. This will give later interviews more focus and streamline the entire preservation, production and Electronic Document Review (EDR) process.


Step 3: Draft and send a legal hold notice and preservation letter to counsel

Controlling the scope of preservation is one of the best ways to control costs in eDiscovery. Once your initial research is complete, connect with opposing counsel and tell them what you propose as a scope. This should include dates, custodians and types of ESI. Be specific. ‘All documents’ is not specific – your custodial interviews will give you the categories of documents that should be included in the legal hold notice.


Step 4:Identify what outside resources you need for preserving and collecting data 

In some cases the client has relationships with eDiscovery solution providers such as LexTrado. In others the legal firm works with providers.


Step 5: Choose your technology

The review platform is the most critical choice here, and there are a number of variables that should be considered. Considerations should include how many legal team members will be using the platform, what you need from it, and associated costs. Do you require a review platform with analytics, for example?


Step 6: Manage the preservation, collection and production process

There will be key decisions that will need to be made as the process continues. Who will make them? Will eDiscovery counsel, the provider and the legal team work together? Who is managing the process?


Step 7: Regularly evaluate your technology spend

There are many ways to do this. For example, if the case is sitting dormant on appeal, your hosting provider can archive your data to avoid paying hosting charges. Remove the data that was marked irrelevant during the EDR. If an experienced counsel knows what is going on in the case and an extensive EDR has been completed there are many ways to save on the technology spend associated with the case.

Step 8: Reporting and metrics generation

Unfortunately, in many cases, eDiscovery happens, the case continues, it is forgotten about and then there is a crisis. Documenting all work and decisions in an eDiscovery report gives you a reference to revisit. Metrics give you a view into costs, help you to better understand them and how to potentially save on them going forward. They also drive efficiency and allow you to budget better for eDiscovery in the future.

Get the most from eDiscovery

The scope of a good eDiscovery process framework includes hundreds of decisions and many different paths to follow. The key is to ensure that the firm you work with has a process that they consistently follow, with proper management and tracking in place to not only get the most out of eDiscovery and EDR, but also to ensure that costs are kept in check.

For support and ensuring you follow best practice processes, connect with us, here.