It’s almost a pop-culture cliche: someone is facing challenges and not getting immediate results, to which a more experienced person says, “Trust the process.”
But often lurking deep in the origin of a cliche is a kernel of truth. We’ve all been there and know that having a tried-and-true method to fall back on when things get tough often yields more success than flying by the seat of your pants with fingers crossed, hoping that this latest scheme will work.
It’s no different in eDiscovery. For years, colleagues and I have been writing about the need for legal teams to create repeatable processes, along with the right technology to enable those processes, in order to avoid pitfalls. But even now, law firms and corporate legal teams alike still struggle to create protocols regarding Electronically Stored Information (ESI).
New Types of ESI Increase the Need for Process
One of today’s biggest challenges is dealing with the growth of enterprise data from collaboration apps with Slack and Teams. In fact, in the 2021 Law Firm Snapshot Survey sponsored by IPRO and ACEDS, nearly a third of respondents said that this type of ESI was a challenge to their current eDiscovery process.
To me, a parallel can be drawn between the rise of these new data types with the early days of email. Back then, legal teams were seeing a new form of electronic evidence showing up in cases, and in response, had to build new processes and engage new tools in order to meet the guidelines set forth in the Federal Rules of Civil Procedure and the Federal Rules of Evidence.
Today’s collaboration tools are no different. Yet, many legal teams are still struggling with these new data types. In fact, a recent conversation with a Senior Paralegal inspired the eDiscovery Blues cartoon accompanying this blog. Many attorneys still don’t understand the need for ESI to be collected, processed, and produced in ways that meet established authentication guidelines, not only for the information contained in chat messages, but also for metadata.
And when collecting data, legal teams should always have the end of the process in mind, should this evidence need to be presented in mediation, arbitration, or trial. Screenshots won’t cut it, in the same way that simply forwarding a bunch of emails from the custodian to outside counsel won’t hold up. There has to be a process, and that process must be followed!
One thing you can do is set up ESI protocols. These will guide your team through key discovery activities and deadlines while adhering to best practices and ensuring all obligations are met.
ESI protocols also act as a roadmap which can be referred to throughout the life of the case.
This is why it’s important to establish guidelines for each stage of the eDiscovery process, from Legal Hold and Preservation, through Collection, Processing, and Review, all the way to Production and Presentation. Even if something is being handled by an outside stakeholder or service provider, having ESI protocols in place will make that process so much easier. Not to mention giving all parties a better handle on budgeting.
eDiscovery is a complex, ever-changing endeavor–so stop flying by the seat of your pants! Build repeatable processes and ESI protocols, include all stakeholders both internal and external, and stick to it.