Diving into formal discovery involving electronically stored information (ESI) can be a daunting undertaking involving lawyers who do not trust each other attempting to discuss matters that neither understands, while implementing new rules of civil procedure relating to E-Discovery that few have even read. We have a learning curve in front of us.
For all involved, full compliance with an E-Discovery process represents the potential for explosive costs, a major commitment in terms of time and staff, both internally and through outside consultants, and great potential for conflicts with opposing counsel leading to protracted motion practice to resolve discovery conflicts.
E-Discovery is highly technical, complex, and multi-faceted, as demonstrated by the Electronic Discovery Reference Model, or EDRM (www.edrm.net/resouces/edrm-stages-explained). It identifies nine stages of the process: Information management, Identification, Preservation, Collection, Processing, Review, Analysis, Production, and Presentation. Each of these features a set of guidelines for discharging the responsibilities within that phase.
Conceptually, it would seem that a standardized template, subject to being customized to fit the circumstances of the case at hand, would provide a road map for success. At the least it could introduce an element of organization to the process; a method for assessing the personnel and resources necessary, and an action plan to discharge the responsibilities at hand.
We will be striving to draft a protocol to publish to our client firms that will provide guidance for addressing the myriad tasks generated by each of these stages. It will comprise a step-by-step guide for counsel and the E-Discovery Neutral to use in managing compliance with the discovery of ESI. Our working name for this tool is the “E-Discovery Project Management Template.”
This tool will be a critical component of the preventative neutral services we offer clients, assisting in negotiating agreements at the earliest stages of ESI-intensive cases, and facilitating the discovery process in a manner designed to minimize cost, time and unnecessary motion practice.
We are in the information gathering and research stage of this project. Kindly contact this writer, or any member of our E-Discovery neutrals (Lawrence Watson, Michael Orfinger or Robert Cole) with suggestions or comments.