Legal Team, IT Communication Must For e-Discovery

By the end of 2012, enterprises that fully document their search processes in e-discovery will save 25 percent on their collection processes, according to Gartner. Enterprises of all sizes, and those facing any number of legal actions annually, should have a simple set of practices to follow anytime they need to embark on an e-discovery process in the near future.

Although no single relevance model or cocktail of relevance models will be effective in the next five years, Gartner predicts that by 2014, lawyers and technologists will use a customary means of recording search processes in e-discovery.

“Addressing the ongoing challenge of the IT perspective of litigation management demands both that the technologies be acquired and that procedures for using them be established,” said Whit Andrews, vice president and distinguished analyst at Gartner. “Companies need to own the products that will be necessary for them to address litigation and understand that those products will not have the same positive impact unless they are supported by repeatable, effective, systemic processes for lawyers and IT to follow.”

Gartner identified five guidelines to ease the first steps of addressing e-discovery for litigation:

* Open communication wide, and include potential custodians. The legal team, or teams, and IT must be able to communicate throughout the process. At the first threat of litigation, IT and the lawyers representing any company or government enterprise should initiate a planned round of meetings as though the e-discovery phase of litigation were a project with phased deliverables and expectations.

* Get a senior litigator involved immediately. High hourly rates are compensated for through effective decision making. Waiting for the final product to be ready for delivery to opposing counsel is a mistake. A senior litigator, engaged at an early stage, will be able to advise on what document and data sources should be searched and examined, how to structure initial queries and what information should be searched, and how to record processes so that they are more defensible in the case of an inquisitive judge.

* Analyse the corpus of documents and data early. Understanding the underlying content of the case holistically will allow IT workers and lawyers to discuss meaningfully what the impact will be of any collection strategy. It will also give the senior litigator the ability to call whether the case should proceed or be settled.

* Estimate the price scale for collection based on what it will cost to pursue strategies of different degrees of intensity. Budgeting the cost of collection will allow IT workers and lawyers to work together to determine a proportional expenditure on e-discovery that is proper for a case, given its significance and the financial exposure it represents.

* Document your decisions. Terms and methods of querying them should be saved in a grid such as a spreadsheet file for simplicity. Lawyers, in particular, continue to hope for a specific means of conducting searches that would allow them not to examine search processes as granularly as they must now. However, for the immediate future, lawyers’ involvement will be critical to achieve recall that will be acceptable to the bench and opposing counsel.

“Codifying these guidelines in order will further enhance efficient proceedings and improve the successful resolution of litigation,” Andrews said.