Three Ways E-Discovery is Just Like Baseball

Association of Certified E-Discovery Specialists (ACEDS)
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Association of Certified E-Discovery Specialists (ACEDS)

Admittedly, I’m not the biggest sports buff. However, when I moved to Kansas City four years ago, what my family and I realized is that you can’t help not be a fan of the Royals, Chiefs, Jay Hawks, and Sporting! Everyone in my family proudly wears some form of KC sports team shirt and/or hat. The energy here in Kansas City is contagious. In fact, the year we moved to KC, I was lucky enough to take clients to Game 1 of the 2015 World Series! Although not a sports fanatic, I know one thing to be true about all team sports – there are so many invaluable lessons about life to be learned. Not surprisingly, there’s many correlations to e-discovery. Today, I want to share with you three of those lessons.

1. E-Discovery is a Team Sport

E-discovery is a team sport! In e-discovery, there are several different roles within and outside of an organization that may be involved in a matter. Each of those people play a different, yet fundamental role in governing the information, securing, storing, collecting, preserving, processing, hosting, searching, analyzing, and producing data. Let’s review the team players.

Information Technology (IT)

IT personnel play a critical role at both law firms and corporations. From instantiating environments with the appropriate levels of CPU, RAM and storage to ensuring the infrastructure has 99.9% uptime. Then, there is the responsibility to ensure the data that’s being stored is protected against cyberattacks such as viruses, malware, phishing, ransomware, et cetera. Their role is vastly more complex than just ensuring your e-mail works correctly. From an e-discovery perspective, there’s the important task of being able to help attorneys find information, preserve it correctly, make a pristine copy, preserve the data and then send it downstream. This part of the team is hugely important to both the underpinnings of not just day-to-day, but ensuring lawyers are protected from sanctions for inadvertently destroying data. The IT players may not know the Federal Rules of Evidence or Civil Procedure like the attorneys, but with the help of the attorneys, they will understand what they need within the Rules to ensure compliance.

Litigation Support and Paralegals

The Litigation Support team and Paralegals are invaluable to the entire e-discovery process. They are the individuals who understand the e-discovery technology and how it is going to help the attorneys ethically and responsibly perform their job of finding relevant and responsive document. But those documents wouldn’t ever get there if it weren’t for these members of the team. A law firm’s Litigation Support team and paralegals may need to work with their client’s IT team to ensure they’re collecting and preserving all the data so that they can ingest it, process it, and cull it down before promoting for attorney review. They may also be working with in-house IT to ensure that in-house tools and/or outsourced web hosted applications are working correctly so that the attorneys don’t have any hiccups during their review. Like IT, the Litigation Support and paraleglal professionals may not know the full details of case law that has been handed down that tells lawyers how to ensure they’re protecting themselves against spoliation, inadvertently producing privileged documents, or what the issues of law mean, but with the help of the attorneys, they will understand what they need to within the case law and rules to ensure compliance.

C-Suite

The C-Suite are part of the e-discovery team as well. They may not know the technology as well as IT and Litigation Support and may not know the Rules and case law as well as the attorneys, but they understand what it takes to run a successful business. Having the investments in the right technology to put down a defensible and auditable Legal Hold, appropriately collect and preserve documents, and invest in advanced technology that can cull through data faster that reduces the overall time in reviewing documents, and all the while ensuring IT has what they need to “protect the castle” against cyber criminals is a massive undertaking. Their role in working with the attorneys and leaders within IT and Litigation Support is critical for the entire team to be successful.

Attorneys

Naturally, all the work that the IT Team and Litigation Support are doing are in support of the attorneys.  It should go without saying, but it is the attorneys who are responsible for upholding the law and defending their clients in the most ethical, strategic, and logical way possible. Most importantly, the attorneys must follow the Rule of Law. To make this happen, lawyers must be able to understand the issues of law involved in each matter and apply the law to the facts. To apply the facts successfully though, the attorneys must be able to get to the most responsive facts to prove their points. Therein lies the role of IT and Litigation Support. The attorneys may not want to understand “how the beans are roasted”, but it is the responsibility under Rule 1 of the ABA Model Rules of Responsibility to do their due diligence on the technology to competently represent their client. It is critical so that they can instruct the other team members what must go right in order to win their cases with the help of technology. Plus, under Rule 5.1, they must appropriately supervise IT, Litigation Support, and the Service Providers. Together with the C-Suite, the attorneys know what it takes to run the business of law. After all, they are the reason why the doors stay open in a law firm and protect corporations from closing their doors!

Service Providers

I’ve written about how to choose the right service provider before (here and here), but I will take a moment to underscore a couple of key points. First, when a law firm or legal department chooses a service provider, they should be choosing a partner and not a vendor. I liken a vendor to the guy selling me the hot dogs at Kauffman Stadium while I’m watching the Royals play ball. An e-discovery service provider should ultimately be an extension of your team, and therefore, have the same goals, principles, and mission as the lawyers, IT, Litigation Support, and the C-Suite. Leveraging a service provider can be critical for their expertise in anything from forensics to review lawyers. There’s so much value that can be derived in working with a true partner. Chosen well, the relationship with an e-discovery service provider should provide harmony, not dissonance with the law firm or legal department.

2. Know the Rules of the Game

Did you know that there are 240 pages to the official MLB Rules of Baseball? Contained therein, you will find how to play the game as well as the definitions of penalties and violations. In fact, a Chapter 6 is all about illegal actions! For the team to play the game correctly, there must be a mastery in the Rules as well as the player’s performance. Being able to judge the speed, velocity, and direction of a ball coming your way over 100 MPH is just part of the battle.

The same can be said for e-discovery. For instance, lawyers must understand the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the ABA Model Rules of Ethics (and the appropriate states’ versions of the same), and a mountain of case law about both e-discovery to ensure things go right. For the e-discovery team to litigate a case correctly, there must be a mastery in Rules as well as the attorney’s performance in drafting and arguing motions. Being able to pen the most persuasive brief the legal system has ever seen is only part of the battle. Ultimately, it is the attorneys who will be letting everyone else on the e-discovery team know what they need to know.

3. Hard Work Yields Results

In baseball, there are Playbooks that detail out how the game is to be played so that it is repeatable enough for them to win. It takes an inordinate amount of hard work to understand and craft out the strategies that to go into this Playbook. To be sure, the talent of the baseball player is never enough. The baseball team needs to create strategies, document the same, and then execute those strategies with the talents of the players working together as a team.

The same can be said for e-discovery. Everyone from the C-Suite, IT, Litigation Support, Attorneys – and the Service Providers – must all work together to create an E-Discovery Playbook that documents exactly how a Legal Hold is put into place, how compliance is enforced, how that data is forensically collected and preserved, how it is processed, ways in which ECA can be performed in an appropriate way in which data is culled down, how that data is then promoted for review, how searches are to be created, the kind of technology that will be used to efficiently search for the data, and how that data is produced in various different forms. The talent of IT alone, Litigation Support alone, the Attorneys alone, the C-Suite alone, and the Service Providers alone is never enough. The E-Discovery team needs to create strategies, document the same, and then execute those strategies with the talents of everyone working together!

Wrapping Up

The game of baseball can look easy when we’re sitting in the stands or in the comfort of your house. And, that is a good thing! It means that every person on the team (the Owner, Manager, Coaches, and all of the ball players) knows what the goal of the game is because they created a strategy to win, and as a team, everyone works together to execute. When each of these things goes right, it looks easy. The same can be said about e-Discovery. When everyone is working together, they understand the rules of e-discovery, and what it takes to win, it should look equally as flawless. With this in mind, get out there and “play ball”!

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