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Are You Lost in the Woods Without an eDiscovery Game Plan?

Lost in the Woods without an eDiscovery Game Plan?

What do you do when your law firm has no eDiscovery game plan? 

Many firms, particularly small or mid-size ones, operate without a standardized eDiscovery game plan. With no written protocols in place, every time a new eDiscovery case comes in, attorneys get tasked with suddenly throwing a plan together. Often, each attorney ends up handling eDiscovery differently, even within the same firm. This scramble is akin to reinventing the wheel, case over case, and this make-work will not save your firm money or time. One could argue that the lack of an eDiscovery game plan reflects a lack of understanding about the discovery process as a whole.

If you’ve found yourself with no clear path, don’t worry: you’re not alone! Every day an attorney somewhere wakes up lost in the eDiscovery woods.  

No eDiscovery Game Plan? Here’s What You and Your Firm Can Do.

Option A: Every person for themselves, split up into the unknown.

In every horror movie (good or bad) there is a point where our heroes split up. This is essentially what happens in firms with no eDiscovery protocols. When a new case comes in, everyone starts from scratch and wanders down their own individual path. Beware, this is hazardous! Litigation certainly doesn’t exist in a vacuum, so neither should eDiscovery. If your eDiscovery operates in a vacuum, prepare yourself for an onslaught of chaos at some point in your case (if you’re not already there).

If your client is the one steering the eDiscovery ship, that’s problematic. Every now and then there is the rare exception where a client happens to have someone on IT staff with expertise in eDiscovery. (But again, beware—this can be a trap! While IT staff may be experts at information technology, they are likely not specialized in eDiscovery to the extent that your case will require.) Chances are that if you, the lawyer, do not yet have a plan (and haven’t engaged an eDiscovery vendor), your client and IT staff will create one for you. Like the part of the movies when the local sheriff tries to help the heroes escape to safety, their intentions are good, but the execution is inefficient and typically has gaping holes with regard to defensibility.

Sure, your client and firm can somehow get the eDiscovery job done ad hoc in the moment, but what landmines did they miss that you will trip over later in the case? What if the opposing party comes back later and asks for one particular attachment, but your client did a sloppy self-collection? If they ran Outlook searches without the correct eDiscovery tools, there’s a good chance they did not grab the attachments. By the time opposing party asks for those attachments, the custodian’s data management may not have those emails in storage anymore and the attachment is gone forever. Now the door is open for opposing party to accuse you of withholding/deleting on purpose, and all of a sudden you’re in the maze from The Shining..

A solid eDiscovery game plan will ensure a buttoned-up process that is defensible from cradle to grave. It’s not impossible to see your case through without a plan, but if you choose to go that route, prepare for bumps and bruises along the way.

Option B: Make an eDiscovery game plan yourself by forming a task force.

Find your team at your firm and build the eDiscovery task force together. Think about who is best for each role and who could provide information to support the task force creation. If you are a young attorney, who is your mentor or partner? Was there a chain of command that adopted you inside the firm when you joined? Paralegals at the firm could also hold the keys to eDiscovery success, especially if they’ve been at the firm for a long time. The best sources of information often come from people in the trenches who are working on and surviving through cases every day.

You may need to make a strong case to higher-ups about the necessity of creating firmwide eDiscovery standards and building this task force. Ask your firm peers how they have been approaching eDiscovery. Maybe some of them already have sought you out for eDiscovery-related advice. If you all are facing the same issues, you can build your case together and bubble it up to the law firm leaders.

It’s important to implement standardized protocols for every step of the EDRM. Even if your law firm has only two attorneys, you should have a task force with a game plan. An established eDiscovery game plan is a sign of the firm’s maturity, expertise, and experience—not unlike Scream’s Sidney Prescott getting better and better every film while everyone keeps trying to kill her.

Keep that in mind when you make your proposal to the decision-makers and remember that you are 100% justified in wanting to raise your hand to the leaders of your firm.

Option C: Go to the Experts.

Engage with an eDiscovery vendor who custom-makes game plans every day. Consult with them for guidance or perhaps even to outsource your entire eDiscovery process. If you’ve found a vendor worth their salt, they advise on and manage eDiscovery every single day. Simply bring in an expert. (Our BIA Experts share a lot with Ash from Evil Dead 2.)

A vendor will help you and your firm in a variety of ways. They can lend consulting and advisory services to give a comprehensive overview on how your firm should tackle every step of the eDiscovery process. They can answer questions about how to make your case successful. They can tell you when it’s too late to change course, or when you should try a different route when things aren’t going so great. They can guide you in creating a task force (see Option B above). They have a fount of knowledge about eDiscovery playbooks (runbooks) that can serve your firm’s current needs but are also repeatable for future successes. The plans are tried, true, and most importantly—defensible.

If your firm decides to outsource eDiscovery to the vendor team, the protocols are all in place, and the vendor’s task force are ready to jump on the case. Every step of the discovery lifecycle – collection, processing, discovery, review, analysis, defensibility in court, and secure storage can be managed by the same team, and your data will be secure in their hands. When your current case is closed and a new one needs eDiscovery, you will have those protocols, workflows, the institutional knowledge, and sometimes even the same personnel in place so you can hit the ground running, with confident strides, every time. No fire drills, no confusion, no chaos.

Will you make it to the end of the eDiscovery Horror Movie?

If you choose Option A, well…best of luck! Please let us know how you survive without an eDiscovery game plan. (If you end up in trouble, we hope you already know the answer to the question: Who You Gonna Call?)

We recommend going with options B or C; having an eDiscovery game plan is completely worthy of investing a little time upfront. For a law firm, creating and implementing eDiscovery protocols should be a complete no-brainer, as discovery is such a driving force in every part of a law firm’s operations.

Be the hero who gets everyone out of the woods with an eDiscovery game plan.

If your firm has no eDiscovery game plan, let alone no task force, you are driving a car without insurance. One day soon you will find yourself trying to change a tire while you’re going 80 mph. If you want to have a smooth, cost-effective, solid, and repeatable discovery process, you need to establish standardized eDiscovery solutions for your firm. Don’t be afraid of some pushback you might get in the beginning. Remember that nobody ever believes the final heroine at the beginning of the movie. If you are the promulgator, this might mean extra cat-herding work for you initially, but think of the time, money, and sanity you will save in the long run when your firm gets to a point where everyone is handling eDiscovery the same way every time, matter over matter.

Our tagline here at BIA is “The eDiscovery Experts” for good reason. Our advisory team offers eDiscovery consulting. If you’re looking for a playbook to adapt for your own task force, check out our eDiscovery Best Practices Guide. When you want to bring defensible eDiscovery protocols to your firm, our team is here for you. If your firm needs guidance on how to establish an eDiscovery game plan, get in touch with us today—we will get you out of the woods.

Tina Barro

Tina Barro

Tina Barro, CEDS is a National Account Director at BIA. She manages relationships with many of BIA’s corporate and law firm clients, fostering a particular focus on social media investigations. In addition to planning in-person and virtual CLEs at law firms across the country each year, Tina is an adept host and orchestrator of virtual booths at BIA-sponsored conferences. Tina is also a community organizer and has worked with the LGBT Bar Association of New York and the Hispanic National Bar Association.