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. 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.
Each new project is going to be fairly opaque to you at the outset. You will know the general legal subject matter, the essential event(s) giving rise to the issue, and any individually named defendants within the organization. Beyond that, however, anything and everything (or nothing) might be relevant. Starting with what you know about the type of matter, the underlying facts, and the key players (typically based on a complaint or preservation notice), you and your collaborators must extrapolate what types of relevant materials are likely to exist within the organization and where (or in whose custody) they are likely to be. This should include consideration of both the information and materials you will want to see and use and the information and materials you anticipate the opposing party will request. Once you have finished your brainstorming exercise and have a list of potentially-extant relevant materials, likely places to look for them, and distinctive characteristics you might use to identify them, your next step is to prioritize these potential materials, sources, and custodians to guide your subsequent activities and allocation of resources. Read more to learn the general flow of inquiry and the criteria on which to base prioritization.
Once you have collaborated with knowledgeable individuals to brainstorm hypothetical materials and potential sources (and prioritize them), you are ready to begin investigating the facts on the ground to bridge the gap from your imagination to actual reality. A variety of investigative options are available for accomplishing this, including: targeted interviewing; data mapping; surveying; and, sampling. Which one (or more than one) will be most useful to you will depend on your circumstances – in particular, your expected number and types of sources.
The investigative options you need to undertake to test your project assumptions will depend on the specifics of your project, especially on its scale. Larger or more complex projects will require more – and more ambitious – investigative efforts. Surveying and sampling are particularly useful and important in projects that feature a large number of potential custodians or other sources. Surveying in this context, like targeted interviews, is part and parcel of what would normally be your full, pre-collection custodian interview process. In the land of eDiscovery, “sampling” is used to refer to both judgmental and statistical sampling. In this early project planning phase, both kinds of sampling can be useful. Learn more about the specific types of these methods and when each is the most beneficial.
Once you have completed your initial planning and completed your investigation activities to validate and flesh out your initial assumptions, you should be equipped with enough information to proceed to estimations of project volumes and potential costs. As with volume estimation, cost estimation is largely a matter of math, multiplying your projected volumes and counts by your preferred service provider’s price list (or bundle, etc.). Several of the calculators linked to within the post for data volume estimation can be used to help you estimate pricing as well, and many service providers also offer their own calculator built to reflect their specific pricing model. Read further to review the factors used in these calculations and to discover the types of calculators available.
As you transition from your planning and estimation activities into the full eDiscovery project, taking time to predefine key roles and communication guidelines can save significant time and confusion later. Even a modestly-sized eDiscovery project is likely to involve individuals from the client organization or one or more law firms. Just as important as setting a plan in place for key roles and delegation of decision-making authority is establishing some rules or guidelines for how communication should be handled, including how it will flow, what rules should be followed for email, and what other documentation should be generated. Learn how to assign primary points of contact and delegate key authority as well as how to establish communication and documentation rules.
One final piece of advice for effective eDiscovery project scoping and planning: seek help from experienced practitioners early and often. It is quite common for organizations not to involve an eDiscovery service provider or independent expert in their eDiscovery project efforts until much of the initial scoping and planning has already been done – sometimes after the meet-and-confer has already occurred and an agreement has already been negotiated. Unfortunately, at this point it’s already too late to avoid some of the pitfalls discussed in this series, and the negotiated agreement may not even be technically feasible. Read on to review the other key project scoping and planning takeaways from this series.