Clichés, Chaos, and eDiscovery Project Planning Series, Part 1

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A multi-part series providing guidance on how to effectively scope and plan eDiscovery projects

We have a lot of maxims in English about the value of preparation, like “measure twice, cut once” or “a stitch in time saves nine.”  Perhaps the most well-known aphorism of this type is “an ounce of prevention is worth a pound of cure,” which dates back to an anonymous letter on the importance of fire safety that Benjamin Franklin published in the Pennsylvania Gazette in the early 18th century.  As I recently wrote of his letter in Legaltech News:

. . . though [Franklin] was writing of fire safety and the consequences of laxity in that area, he might as well have been writing about eDiscovery project planning and its risks.  As any experienced eDiscovery practitioner will confirm, being forced to risk your neck jumping out the window of a burning house, because of something tiny you missed while hurrying around, can be a pretty good analogy for the eDiscovery experience.

eDiscovery on Fire

eDiscovery is undeniably challenging.  Data volumes continue to multiply, data types continue to diversify, and data custodians continue to modify their tools and practices.  Couple this daunting set of variables with an ever-expanding set of eDiscovery tools and services available to be leveraged, add time-pressure and an adversarial process, and you have a perfect recipe for chaos, uncertainty, and small (but important) things getting missed.

As Franklin’s letter and the other maxims tell us, the reliable way to reduce the risk of such errors is to take the time for proper planning before rushing headlong to action.  To be sure, planning an eDiscovery project is an iterative process that overlaps and intersects with other early project activities, but investing the time and effort required for effective planning, from the beginning (and throughout those early phases), will produce downstream benefits including saved time, saved money, reduced risk, and increased defensibility.  The clichés became clichés for a reason.

Evolving Expectations

State bars and industry organizations are now formally recognizing the importance of competent preparation and planning to meet the technical and logistical challenges of our current eDiscovery reality.  For example, California’s Formal Opinion on attorney technical competence specifically articulates that attorneys (or attorneys working with the assistance of qualified experts) need to be able to:

  • Initially Assess E-Discovery Needs and Issues, If Any
  • Analyze and Understand a Client’s ESI Systems and Storage
  • Advise the Client on Available Options for Collection and Preservation of ESI
  • Identify Custodians of Potentially Relevant ESI
  • Engage in Competent and Meaningful Meet and Confer with Opposing Counsel Concerning an E-Discovery Plan

Each of these requirements is part and parcel of effective eDiscovery project planning, making the ability to do such planning a formal requirement in California.  The EDRM organization, too, in their EDRM Project Management Framework (“EPMF”) emphasizes the critical importance of the early planning phases to overall project success:

4.2.1. Scoping Phase

The Scoping Phase lays the foundation for project success by aligning all teams to a common vision and goals. By defining the project scope and providing an overview of the context and constraints, this phase lays the foundation for project planning in the following phases. [emphasis added]

Their EPMF scoping phase is then followed by a preliminary planning phase and a detailed planning phase.

Upcoming in this Series

Over the coming weeks in this series, we will discuss various aspects of effective eDiscovery project planning to equip you with the knowledge you need to reduce your chaos, your costs, and your risks.  Over the coming weeks, we will dive into initial scoping activities, investigation options, volume estimation and downstream planning, communication flow, and more.

As we do so, we will also go over checklists of key items for each phase in the process.  Checklists may sound like simple things, but when properly implemented, their value is real.  For example, doctors starting to follow checklists for key tasks in one program saved 1,500 lives and $175 million in the first eighteen months.  If checklists are a match for modern medicine, they’re more than a match for eDiscovery.

About the Author

Matthew Verga

Director of Education

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A fourteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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