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No, (insert name) Is Not An eDiscovery Strategist

02 March 2017 / by Aaron Vick

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 Let’s be honest, we all have our favorite “go-to” person (or company) for many things. Whether it be the convenient little dry cleaners you pass every day on the way to the office, the copy shop who sends the courier with amazingly warm Otis Spunk Meyer cookies every few weeks just to blow your sugar intake for the day, or the barista at your favorite coffee shop that knows you by name and begins making your coffee just how you like it the moment you step in the door (grande cappuccino, extra shot, btw!). However, in the world of legal discovery, specifically discovery with large amounts of electronically stored information (ESI), you cannot always look to your “person” to offer the best strategy. True eDiscovery Strategists provide solution-based approaches tailored to the subject matter, and NOT a canned discovery workflow.

Over the past few years we have seen an explosion of “eDiscovery providers” around the world, ranging from your mom-and-pop copy shops trying to “up their game,” forensic providers looking to add new revenue streams to their business, groups selling managed services to purportedly help “streamline” costs, and massively large vendors merging to resell software licenses and data processing in order grow their list of email contacts. 

Alternative Fact: Every vendor pitching you eDiscovery services is the same.

Actual Fact: Most of those vendors are providing “services” based on third party software they’ve invested in, and have a set path for your data based on a pre-defined workflow.  You cannot plant a flag into the eDiscovery summit as a strategist based on the dollars spent, software used, or number of classes taken; albeit, it happens way too often. As with any expert field, there are many who claim they can “do,” and there are few who can.

FYI: My mother, a 30 year educator, took an online class for Microsoft Word, but I’m not inclined to have her redline and track changes on the latest ESI Order I drafted. She learned how to use the tool, but still lacks the experience to apply explicit or implicit judgment to the subject matter.

Ralph Keeney and Detlof von Winterfeldt published a paper on analyzing experts and their judgment within complex subject matter. One of the key takeaways from their findings is expert assessments complement the method/analysis. They explain that true experts may rely on implicit judgment initially, but can use explicit judgment to further “break an implicit thought process into smaller parts and apply logic.” Therefore, “the potential value added to an analysis of a complex problem by explicit expert assessment should be substantial” (Keeney and Winterfeldt 1989).

Among this vast spectrum of players, there are some true experts in the eDiscovery field. These folks are focused on proper collaboration with the client, drafting a defensible path to managing the discovery, and aligning themselves with the ABA rules of conduct to “zealously protect and pursue a client's legitimate interests.” These are the folks that understand not only the tools of the trade from a technological perspective, but also the strategy involved from a quasi-legal perceptive aimed at uncovering the truth. These are the folks that ask to review the material first, even if the initial directive is to “process and load to review,” because sometimes there may be other ways to help. Yes, the “truth is out there,” but sometimes it isn’t found in a nicely structured statement of work, documenting the same old waterfall processes attached to GB counts and per page fees.

Bottom Line: eDiscovery Strategists provide a true solution based approach that is tailored to the subject matter, and not a canned discovery workflow.

As an example, we were recently were looped into a matter, although late in the game, where a very technical forensic team was hired to image every device under the sun. This was the best course of action based on the litigation; although, as your expert would advise you, this is not always the best path. Forensic imaging is costly and is not always the most efficient way to collect data for every case. Nonetheless, the client ended up with many different images and was then presented a very expensive proposal to have all of the imaged data follow the “normal” eDiscovery workflow leading to de-NISTing, deduplication, culling/processing, and then delivering for review.

Nonetheless, the client ended up with many different images, and was then presented a very expensive proposal to have all of the imaged data follow the “normal” eDiscovery workflow leading to de-NISTing, deduplication, culling/processing, and then delivering for review.  After gathering numerous “good to know” criteria from our client, we set down a path that didn’t include a massive waterfall processing proposal. Instead, we crafted a strategy that boiled down to good old fashion hands-on investigating without wasting many days and thousands of dollars processing data. What we were able to determine within 5 hours of digging led to a small data export, a signed declaration of our findings, and significant savings.

I hear you and, yes, you are correct. Not every matter provides such a great outcome after spending some initial quality time with the data. However, how many missed opportunities have there been in your prior matters because you didn’t rely on an eDiscovery Strategist? How much money did you spend on discovery in your last big matter, and are you sure that was the best way to spend that money? Experts help Experts.

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It is guaranteed that among the run-of-the-mill eDiscovery jobs lies a set of data that is best served by an expert. So, call a true eDiscovery strategist the next time you’re ready to dive into the discovery, regardless of what it appears to be. You’ll have peace of mind that the correct steps were taken, even if it should go the routine path The project will start correctly, there will be a focus on PPPPP (Proper Planning Prevents Poor Performance), and you can confidently provide the client with the most zealous and defensible solution.

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