How You Turn All That E-Discovery Work Into An Asset

Spoiler Alert! This isn't another blog about predictive coding. Sorry if the "flavor of the month" discussion was what you were craving.

I spoke briefly in my last blog about how the 'secret is in the dirt'. It is a term Ben Hogan used many years ago when discussing practicing golf. The point he was trying to make was that if you make a repeatable swing (or process) and practice it every time then that will lead to success on the golf course. So the more you practice and fine tune the swing based on previous feedback and make it into a repeatable process then the more success you will have. How do we translate that to e-discovery?

I am sure many of you see where I am going with this blog entry but wait just a second.

Many times, I have clients who once the litigation has been served immediately (or not so immediately) start down the path of what I like to call the traditional e-discovery workflow. The client (with or without assistance) has usually already begun the task of identifying potential relevant custodians during their legal hold process. And maybe even taking it one step further and identifying some data sources. The process of identifying data sources is a common first step which has been memorialized in the often overused EDRM model.

But let's take one step back. How did we get to the identification of those custodians and data sources? As one GC told me, "I feel like I start over every time I get a new case in the door. It is costing me millions I am sure." Generally, the lawyers get together with the appropriate business people and discuss who is involved from every level. That conversation usually leads (or should lead) to what data sources should be included outside of the custodial data. This conversation usually grows and grows and can go down many different routes leading to some sort of multi-version document that attempts to outline the inevitable data collection process. We are all more than familiar with this process. We are also more then familiar with how this process takes on a life of its own and changes more times than a Miss USA contestant changes outfits in ninety minutes.

But what if based on the profile of a litigation matter, you could already know the answers to these questions? Or at least had a really good idea of where to start?

The answers are in the litigation of the past and present. If corporations were take the data that is produced in the standard workflow process and build a knowledge base, then the sky is the limit. This information that is gathered can be used to determine the custodians that commonly occur in certain litigation. Your risk management team could look into litigation "triggers" - what events occur that trigger litigation inside the corporation. Human resources could look into issues related to labor and employment based on reporting from your corporations ediscovery knowledge base.

The building of the knowledge base is just like the building of any other database of information. And I will discuss in my next entry how we avoid the age old issue of bad data and build an effective knowledge base.

Turning E-Discovery Into An Asset

Many times, I get calls from clients to discuss the e-discovery aspect of a new case. The first few questions from both sides will always seemingly revolve around scope and potentially how the process might work for collection. But inevitably, the discussion gets to cost. And the next logical step in many cases is how to save money and not "spend more than my case is worth". Every corporate client inevitably wants to cut the proverbial corner.

Many corporations and law firms see the expense as a nuisance in the litigation life cycle. I have actually had counsel tell me before that they have tried and will continue to try and cut deals with opposing counsel to say "You don't ask for my electronic data and I won't ask for your electronic data." This tactic will likely be challenged as time goes on and become less and less possible.

But what if corporations used this information going forward not only on one case but as a way to track litigation? What if General Counsel could go to Human Resources or the corporate risk management team with valuable data that was mined from the e-discovery efforts of the litigation department?

As Ben Hogan once said "The secret is in the dirt". So why waste the dirt in e-discovery? Every online retailer from Amazon.com to Southwest Airlines is using customer trends to determine inventory, where to place 'in store' items, recommending products based on your prior purchasing and what items sell to what demographic. So why are corporations not using the same data in litigation to "learn" what trends there are within their corporate environment? These are all questions that have yet to be answered but the answers are the secret to corporations possibly saving millions of dollars in future litigation costs.

Over the next few posts, we will look at different ways corporations can use this data in a way that manages cost as well as mitigates risk.

To be continued....