I had lunch with an eDiscovery colleague last week and he related to me a recent case he worked on. A few weeks ago, his client informed him that they had agreed with opposing party to make a production in four days. The client did not have a production population determined, and they had no idea how long it would take to create and run a production before they agreed to the deadline with opposing counsel; they picked a date in no way related to the reality that was their data set. None of this had an effect on their expectations for the viability of the project of course. The result? A rush project, extra people working extra hours to get the job done, tension, and having to renegotiate a new deadline with the opposing party because the date was simply unrealistic given the amount of data eventually involved. Ideal? No. Fun? No. Avoidable? Yes.
The above story exemplifies (although perhaps somewhat to the extreme) the experience eDiscovery personnel (whether in-house, outside counsel, or vendor) have with far too many clients in far too many cases. eDiscovery personnel are often left out of the decision-making process and have to scramble to meet artificially created deadlines that have little or no bearing to the work. We all have deadlines beyond our control, so eDiscovery personnel are no different than most in that regard, however, what can be exasperating for eDiscovery personnel, is that in the case of eDiscovery, the deadlines need not necessarily be so tight and out of our or control, or at least knowledge.
To avoid such rush projects, unobtainable deadlines, and wasted time and money, counsel should plan ahead for eDiscovery and include their eDiscovery personnel in that process, as well as in the negotiation of deadlines, to the extent possible (even if just as a point of reference and knowledge). Some easy things you can do to help your eDiscovery personnel better meet your needs, include:
• Create an eDiscovery Plan ASAP – Ideally you would create this before the case begins or soon thereafter. Be sure to include your eDiscovery personnel in this planning so that they can assist with properly setting eDiscovery related deadlines and expectations.
• Leverage Your eDiscovery Personnel’s Expertise – A classic example would be engaging them for search term analysis before agreeing to terms with the opposing party and before you make any productions. Provide the terms to your eDiscovery personnel for testing and sampling, leveraging their ability to write searches and manipulate review platforms. Via such exercises, they can sample documents testing for precision and recall, with the ultimate goal being to create a data set that is defensible and proportionate to the value of the case.
• Do Not Agree to eDiscovery Deadlines Before You Know What the Job Will Entail and Without Input from Your eDiscovery Personnel About How and If It Can Be Done – I-Med Pharma, Inc. v. Biomatrix, Civ. No 03-3677 (DRD), (D.N.J. 2011) is a great of example of why you need to know what the task entails before agreeing. The plaintiff’s in the matter agreed to search terms without testing them and without the advice of their eDiscovery personnel. The terms generated over 64 million hits and 95 million pages, unreal (and expensive) numbers.
• Build in Extra Time and Do Not Wait Until the Last Minute – The only thing worse than trying to complete a complex and important project precisely and accurately, is doing so with little notice and no time for mistakes. By engaging your eDiscovery personnel early in a matter, you not only put them on notice, but it will help them help you obtain the knowledge you need to negotiate and enter into reasonable deadlines and tasks with plenty of time.
You may be asking Why should I do all this, after all, are not my eDiscovery personnel paid to work for me? The answer is, aside from making your eDiscovery personnel happier and more motivated, it will also improve your case; you will have more time to do a better job and implement quality control measures, the court and opposing party will appreciate that you can deliver on what you promise, and by planning ahead, you can create cost saving efficiencies and avoid increased fees for rushed projects.