Moving from Reactive to Proactive E-Discovery

Reactive Proactive
Mike-Hamilton-headshotMike Hamilton is a senior manager of e-discovery programs at Exterro. He is a legal and marketing professional with a passion and focus for creating thoughtful, out-of-the-box campaigns that advance e-discovery education and best practices. He holds a juris doctorate from the University of Oregon School of Law. Find him on LinkedIn and follow him on Twitter.

Exterro provides e-discovery software specifically designed for in-house legal and IT teams at global 2000 organizations. Built on an open architecture platform, Exterro's software integrates with existing IT, HR and EDRM systems to deliver complete visibility into all critical data, as well as the flexibility to scale beyond e-discovery to encompass larger legal, compliance and information governance initiatives.

While e-discovery is by nature a reactive process, legal teams can – and should – be leveraging their data for strategic legal purposes. Ideally, defense counsel should be able to determine within the first 60-90 days of the matter:

(1) If there's merit to the complaint

(2) The likely scope of the e-discovery parameters

(3) Their strategy and which key documents will advance their positions

A proactive e-discovery strategy will go a long way towards reducing the stress and achieving these objectives. The goal for legal teams should be to find and preserve critical documents as early as possible so they can make informed, strategic decisions about how to proceed with the case.

Following are some helpful strategies to help legal teams improve their e-discovery response:

Leverage Key Custodian Knowledge: A crucial component of proactive e-discovery is incorporating a comprehensive custodian interview process. A good interview process helps uncover all responsive ESI and arms legal teams with valuable strategic information about their case.

Preserve Broadly; Collect Narrowly: Preservation is the backbone of defensibility because it ensures that potentially relevant documents are not destroyed. While it's important to cast a wide preservation net, especially early in the case, collections should be highly targeted. Beyond the cost and business disruptions, over-collecting data makes it more difficult for legal teams to identify the truly relevant material.

Leverage Technology to Gather Intelligence about ESI: When a collection is extensive, it is difficult if not impossible for legal teams to go through each document individually and draw meaningful conclusions about the case and potential legal exposure. There are plenty of e-discovery solutions to help streamline the review process. For example, near-duplicate technology allows discovery teams to view like-minded documents with similar content together, helping them understand the context of data more quickly and make decisions based on entire threads versus a single document.

To learn more about issues related to proactive e-discovery, read another one of my blog posts entitled “Expediting E-Discovery Before Meet & Confer”.

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