The Long and Winding Road
Posted by Salvatore Mancuso at 12:16 PM
0 comments - Categories: Collection Process
The identification/collection process is a pivotal aspect of the discovery endeavor. Although an unsuccessful collection will not necessarily make or break a case, it can cause you to miss deadlines, essentially placing you on “sanction row.” Where or when you start and who you speak to can be daunting questions at the outset of any litigation. Approaching the task pragmatically, with your case drivers in hand, and some good ole’ common sense usually makes for a good start. How many of you reading this blog have started down, at least at first glance, a clear path only to learn that it is a long and winding road that seems to lead no where?
One component that is often missing from the process, and sometimes the main reason for inefficiency, is the overseer or discovery manager. The need to manage the big picture while tracking and sharing the gathered information is a must but seldom followed correctly. More commonly, we find greater attention given to the large high profile matters than we do the smaller cases. Counsel's obligation to attend the Rule 26(f) conference in a prepared manner is well documented. However, Rule 26(f) only applies to federal matters and those state courts that have adopted similar rules. The obligation to manage the identification/collection process goes beyond the rules of civil procedure. Your motivation should be (at least at the foundation,) to run a matter on its own merit while maintaining a good standing relationship with your client, and ultimately, to conduct a reasonable and good faith search for potentially relevant data.
Too often the identification/collection process is attacked as a separate chore whose only importance is the information the process generates. Certainly, the outcome is important but the manner by which you choose to dissect the client’s infrastructure, map out potentially relevant data/information, and actually collect the data is equally important as it relates to the overall game plan. If the e-discovery process is thought to be an iterative process, then the individual pieces that make up the whole of the e-discovery picture should be as well. In my experience, taking on the belief that all of your collection objectives will be accomplished in a succinct and organized manner is completely unrealistic and counterproductive. Creating a flexible plan and giving clear direction to the team, however, will allow you to avoid that never-ending winding road.
Once the legal team has an idea of the scope of the discovery, consideration should be given to documenting the identification/collection plan. A team leader or discovery manager should be assigned the responsibility to ensure the discovery scope remains the main focus of the identification/collection process. More over, the discovery manager should document all decisions relating to this process, preservation needs and actions, custodian names, potentially relevant data types/systems, and periodically remind the appropriate parties of the legal hold obligation that should already be in place. One source to reference during this stage is the Sedona Conference Publication entitled Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible.
Another essential step is the interview process. It is through this process that legal teams may learn of additional relevant custodians, the relationship between the key custodians, key facts that either strengthen or weaken your client’s position, and gain a better understanding of the overall data map as well as key data types/systems. Documenting the interviews is important. Look to the discovery manager to keep the remainder of the team up to speed. The never-ending path that was once a chore to execute can be viewed as a direct path with room for flexibility and modification along the way.
While the interview process is in progress, the collection plan should begin to take shape. Should you take on a full or targeted collection? Should you conduct a self or outsourced collection? Look to your case triggers for part of the answer. If you are handling a traditional civil litigation with the element of fraud, conducting a targeted and self collection may not be enough. On the other hand, if you are assisting your client on a self-reporting FCPA investigation, conducting a targeted self-collection with the help of your client’s IT department may be all you need. Remaining open to applying a combination of collection methods is the best course of action and often the most cost-effective approach.
The identification/collection process does not need to be a chore. In fact, a successful process entails effective juggling of many moving players and pieces. Assigning someone to the take charge of the process will save you and your client time and money. The next time you set out on the road of identifying and collecting your client’s data, you should take your discovery manager along for the trip, and leave plenty of markers along the way so that you can circle back when needed.
Before you continue on your way, send me feedback on your experiences as well as any tips you may have for handling the identification/collection process. Let’s keep this an open dialogue as the above only skims the surface.
