With this balance in mind, how does one best approach the conduct of the key electronic discovery tasks of evaluating (analytics), processing, and reviewing ESI in preparation for use discovery and possible litigation? To get to the answer of the best approach, it seems reasonable that one would first define the issues that make time, risk and cost important and then view these factors through the lens of the typical approaches used in the conduct of electronic discovery today.
Time: The Need for Speed
The ability of legal professionals to quickly gain an understanding of potential evidence is of paramount importance if they want to seize the initiative in the conduct of litigation. In practical terms, the quicker a legal team can gain an understanding of available ESI, the quicker they can make early case assessments. Understanding of available ESI can also ensure counsel is prepared to proactively shape the direction of handling ESI during the federally mandated “Meet and Confer” process.
Risk: More than a Board Game
Litigation is inherently rife with risk, and the complexity of discovery of ESI only increases this risk based on the intricacies of digital data, the continually growing volume of data available, and evolving ESI related law. Managing this complexity requires an understanding of what is an acceptable risk in relation to the time available and the financial resources available. In determining acceptable risk, three of the key concerns of legal professionals are:
- Will the electronic discovery approach reduce the risk of missing potentially responsive documents?
- Will the electronic discovery technologies used minimize risks associated with the transfer of data between organizations and platforms?
- Will the electronic discovery effort be conducted in a legally defensible manner?
In viewing traditional electronic discovery approaches and with these risk considerations in mind, it appears that time available and financial resources determine the level of acceptable risk. However, newer electronic discovery approaches can reduce the risk of missing potentially responsive documents, conduct the entire process in a legally defensible manner, and also do these things in the most time efficient and cost effective manners.
Cost: Show Me the Money
The economics of electronic discovery are such an important factor in litigation that, in some cases, they may drive counsel recommendations as much, if not more, than the actual evidentiary position of the client. With this in mind, legal professionals not only want to but need to be able to conduct as thorough electronic discovery effort as possible at the lowest monetary cost possible. Key questions needing to be considered when evaluating the financial factor of electronic discovery may include:
- Based on time requirements and acceptable risk, what is the best electronic discovery approach congruent with firm and client financial resources and cost management objectives?
- Do we have the electronic discovery systems and expertise in place to conduct the electronic discovery tasks using the best electronic discovery approach congruent with client financial and cost management objectives?
Through an understanding of why the factors of time, risk, and costs factors of electronic discovery are important, we can now view these factors through the lens of two of the most commonly used approaches to electronic discovery as well as view these factors in relation to one of the newer approaches which is gradually gaining acceptance.