Back to the Basics for 2009

Over the past several years e-discovery has blossomed into a multi-million dollar industry. Businesses and the legal community alike have struggled to keep up with evolving court rules on e-discovery and their interpretation. When it involves the technical arena, we are often reactive rather than proactive on finding the right tools for the right job. As a result, we fall prey to system vendors' promises of superior products that can solve all our discovery problems.

In this economic climate, most businesses are probably moving cautiously when it comes to securing licenses or system purchases. More than ever, we are doing more window shopping than buying. But when we decide to buy, mistakes can be made due to the following reasons.

  • Poor needs assessment. While technologies can do wonders, it is how they are applied that matters. The mantra is implement the appropriate technology with some leeway for expansion. Because all technologies have shelf lives (the length of time given before they are considered obsolete or unsuitable for use), it presents a business risk to put all the eggs in one basket. Before purchasing any particular products, assess the vendor's business strength by checking its market share, user feedbacks/reviews, ease of implementation, and portability (data being integrated or migrated to another platform). It is also important to examine the interdependency among its business partners to assess its long-term viability should one or more of its business partners fail. In addition, it is crucial that the product fits into the internal technology infrastructure and does not create an impediment to workflow issues.
  • Lack of collaboration. Not only that it is to the advantage of all parties involved in litigation to examine what information is needed and the in-house systems that are readily available to facilitate the retrieval process, FRCP Rule 37(f) demands it. If a third party vendor is needed, both sides might want to work with the same vendor to negotiate discounted services. This in turn creates an added incentive for both sides to make extra efforts to ascertain the type and volume of information that is most relevant for successful litigation and results in potential cost savings for the clients.

While there is no magic bullet against e-discovery, following the ground rules listed above can make the discovery process more productive and less painful.