How Employing eDiscovery Counsel Can Pay Dividends

Benefits of e-Discovery Counsel

Fundamentally, e-discovery is a procedural process. Rule 26(f) meet and confer conferences, ESI protocols, keyword negotiations for collection and the associated motion practice are all part of the complex e-discovery framework that requires significant time, experience, knowledge and skill to navigate. In particular, well-qualified e-discovery counsel can ensure that negotiable elements of the process, such as ESI preservation and collection protocols and keyword filtering parameters, are drafted to in turn produce the most efficient, cost-effective and beneficial results. A substantial driver of e-discovery costs is sheer scope of the process ' from collection to document review ' so effectively limiting the scope of discovery from the beginning and trouble-shooting possible future complications such as metadata preservation and production will ultimately pay dividends in the long run. Further, because so many parties continue to neglect the importance of retaining knowledgeable and experienced counsel for the e-discovery process, the party with e-discovery counsel often enjoys a strategic advantage when it comes to settlement or substantive issues down the road.

From an organizational perspective, the most challenging aspect of e-discovery is the actual management, collection and processing of ESI. Qualified e-discovery counsel can not only help guide an organization through this complex process, it can also help parties to convert reactive, risk-laden fire drill-style responses into an efficient, repeatable system based upon the prevailing information management best practices. For example, the largest (and most expensive) problem most corporations face today is the sheer amount of information being preserved. Most corporations are saving far too much data, including redundant sets of data in response to litigation holds, possible litigation, industry-specific regulations or even emergency back-up plans. e-Discovery counsel is adept at examining all these areas and coming up with a specific plan regarding what data or sets of data need to be retained and for how long. The smaller the set of data being preserved, the smaller the e-discovery costs down the road. An added benefit to a well constructed preservation plan is a lessened fear of e-discovery sanctions down the road.

The document review process is undoubtedly the most expensive aspect of e-discovery, but retaining dedicated e-discovery counsel can help ensure that the process is carried out in the most efficient manner possible. The document review process is rapidly changing, and knowledgeable e-discovery counsel can provide invaluable expertise selecting the most cost-effective and efficient blend of options from the myriad of available methods and technologies. To illustrate, there are situations where it makes more sense to sample a small subset of the data or cull all of the data in a native review platform ' at a fraction of the cost of a traditional review. In other instances ' such as a negotiated filter list ' it makes little sense to start in a native review platform unless there is a limited need for redactions or productions. Finally, there are a variety of sophisticated review technologies available, such as automated work flow, intelligent prioritization and intelligent categorization that greatly reduce review costs. Partnering with experienced e-discovery counsel provides clients with expert assistance in sorting through the different technologies to not only ensure the right tools are selected, but that review teams are trained on how to use them.

Tips for Working with e-Discovery Counsel

Partnering with e-discovery counsel can substantially reduce the burden on in-house and merits counsel to address the complex e-discovery issues, but there are a few important considerations that in-house counsel should make on the front-end to ensure e-discovery counsel can perform as needed.

• Familiarize e-discovery counsel with your organization's IT infrastructures and data maps.
• Understand e-discovery counsel's depth and experience regarding document requests, discovery productions, meet and confer negotiations and motions practice associated with ESI.
• Provide a collaborative environment by establishing a dedicated point person(s) or streamlined communication network between IT, litigation support, in-house counsel, e-discovery counsel, merits counsel, service providers and consultants.

Conclusion

e-Discovery is often the lengthiest and most expensive part of any litigation or investigation, so it should be handled by attorneys who are experts in that field. While it was traditionally prudent to hire counsel based solely upon the nature of the underlying dispute and trust that they possessed the requisite capacity to handle the underlying discovery, this approach is now as obsolete as paper discovery. Partnering with dedicated e-discovery counsel ensures that the complex and expensive e-discovery process is managed in the most efficient, cost-effective and competent manner possible.

Beth Koehler is a legal consultant for Kroll Ontrack. She provides legal technology solutions and services to manage the informational needs of businesses and law firms.

e-Discovery issues are becoming increasingly more complex while associated review costs keep rising dramatically ' often threatening to overshadow the substantive issues of the litigation or investigation at hand. Because of this, more and more corporations are turning to a two-tiered model when it comes to new matters: one law firm (or separate group within the law firm) that will focus on preservation, collection and review, and a separate team of lawyers that will focus on the actual merits of the case. This model is proving to be cost-effective for e-discovery because efficient and repeatable practices can be implemented. In addition, this approach allows merits counsel to focus on what it is they do best ' handling the underlying complex substantive issues of the matter, rather than getting bogged down or distracted by what can often be a lengthy and technical process.

e-Discovery Counsel vs. Merits Counsel

Given the complex nature of modern litigation, parties should consider hiring separate, dedicated merits and e-discovery counsel. Although retaining separate merits and e-discovery counsel may seem more costly and complicated, e-discovery has essentially become its own legal field that requires a significant amount of attention and expertise. Counsel specializing in the underlying substantive issues may not have the skills, experience and time necessary to navigate the e-discovery process in a zealous and cost-effective manner. Retaining separate e-discovery counsel allows for more efficient preservations, collections, Rule 26(f) meet and confer conferences, keyword negotiations, deposition practice, processing decisions, document review, and motion practice when disputes arise. This ultimately results in better representation, lower costs, reduced risk and allows the merits counsel to focus on the substantive issues and provide better representation in settlement discussions or at trial.

Benefits of e-Discovery Counsel

Fundamentally, e-discovery is a procedural process. Rule 26(f) meet and confer conferences, ESI protocols, keyword negotiations for collection and the associated motion practice are all part of the complex e-discovery framework that requires significant time, experience, knowledge and skill to navigate. In particular, well-qualified e-discovery counsel can ensure that negotiable elements of the process, such as ESI preservation and collection protocols and keyword filtering parameters, are drafted to in turn produce the most efficient, cost-effective and beneficial results. A substantial driver of e-discovery costs is sheer scope of the process ' from collection to document review ' so effectively limiting the scope of discovery from the beginning and trouble-shooting possible future complications such as metadata preservation and production will ultimately pay dividends in the long run. Further, because so many parties continue to neglect the importance of retaining knowledgeable and experienced counsel for the e-discovery process, the party with e-discovery counsel often enjoys a strategic advantage when it comes to settlement or substantive issues down the road.

From an organizational perspective, the most challenging aspect of e-discovery is the actual management, collection and processing of ESI. Qualified e-discovery counsel can not only help guide an organization through this complex process, it can also help parties to convert reactive, risk-laden fire drill-style responses into an efficient, repeatable system based upon the prevailing information management best practices. For example, the largest (and most expensive) problem most corporations face today is the sheer amount of information being preserved. Most corporations are saving far too much data, including redundant sets of data in response to litigation holds, possible litigation, industry-specific regulations or even emergency back-up plans. e-Discovery counsel is adept at examining all these areas and coming up with a specific plan regarding what data or sets of data need to be retained and for how long. The smaller the set of data being preserved, the smaller the e-discovery costs down the road. An added benefit to a well constructed preservation plan is a lessened fear of e-discovery sanctions down the road.

The document review process is undoubtedly the most expensive aspect of e-discovery, but retaining dedicated e-discovery counsel can help ensure that the process is carried out in the most efficient manner possible. The document review process is rapidly changing, and knowledgeable e-discovery counsel can provide invaluable expertise selecting the most cost-effective and efficient blend of options from the myriad of available methods and technologies. To illustrate, there are situations where it makes more sense to sample a small subset of the data or cull all of the data in a native review platform ' at a fraction of the cost of a traditional review. In other instances ' such as a negotiated filter list ' it makes little sense to start in a native review platform unless there is a limited need for redactions or productions. Finally, there are a variety of sophisticated review technologies available, such as automated work flow, intelligent prioritization and intelligent categorization that greatly reduce review costs. Partnering with experienced e-discovery counsel provides clients with expert assistance in sorting through the different technologies to not only ensure the right tools are selected, but that review teams are trained on how to use them.

Tips for Working with e-Discovery Counsel

Partnering with e-discovery counsel can substantially reduce the burden on in-house and merits counsel to address the complex e-discovery issues, but there are a few important considerations that in-house counsel should make on the front-end to ensure e-discovery counsel can perform as needed.

• Familiarize e-discovery counsel with your organization's IT infrastructures and data maps.
• Understand e-discovery counsel's depth and experience regarding document requests, discovery productions, meet and confer negotiations and motions practice associated with ESI.
• Provide a collaborative environment by establishing a dedicated point person(s) or streamlined communication network between IT, litigation support, in-house counsel, e-discovery counsel, merits counsel, service providers and consultants.

Conclusion

e-Discovery is often the lengthiest and most expensive part of any litigation or investigation, so it should be handled by attorneys who are experts in that field. While it was traditionally prudent to hire counsel based solely upon the nature of the underlying dispute and trust that they possessed the requisite capacity to handle the underlying discovery, this approach is now as obsolete as paper discovery. Partnering with dedicated e-discovery counsel ensures that the complex and expensive e-discovery process is managed in the most efficient, cost-effective and competent manner possible.

Beth Koehler is a legal consultant for Kroll Ontrack. She provides legal technology solutions and services to manage the informational needs of businesses and law firms.