A Proactive eDiscovery Approach Would Make Hannibal Smith Proud

Who doesn’t love an A-Team reference? Let’s get to the backstory. …

On September 26, Ken Koch (Managing Director, KPMG, LLP) and I had the privilege to speak to a roomful of healthcare and compliance lawyers on the subject “eDiscovery: A Tactical Approach to Managing Risk and Reducing Cost” as part of the Fraud and Compliance Forum, co-sponsored by the American Health Lawyers Association and the Health Care Compliance Association.

The subject matter was straightforward: why is planning for e-discovery so important? We started with examples of how e-discovery costs are directly impacted by handling it well, doing it just okay or doing it poorly. The cost can be many multiples more if handled poorly versus handling it with planning and forethought. Volume and types of data are huge drivers in the overall discussion of costs for e-discovery; other factors include record retention plans, discovery workflows, record collection initiatives (whether overly broad or more targeted) and search and culling methodologies or technologies utilized.

To the readers of this blog, none of this is necessarily new information. But one point in particular – that the review component of the EDRM model is often referred to as “the most expensive piece in the process” – is where I would like to diverge. During our discussion, I argued that the steps leading up to the review actually have more impact on overall cost of the review project: how a company deals with documents from a retention perspective; how it prepares and plans for the project; how the company targets its collection; and how the technology and methodology of culling and searching the data are bigger components of the overall cost and will directly impact the volume, time frame and budget of the review itself. Stay with me for the A-Team analogy. …

Being proactive on all of these steps is key. Waiting for litigation to hit before deciding on how to send a legal hold or to start training internal IT resources on the preservation (and perhaps collection) of data will only serve to increase overall project costs. Getting IT, Legal, Compliance, and Retention folks in the room to deliberately plan an e-discovery response before litigation hits will save a lot of money. Topics could include data mapping and choosing technology and review partners, or simply getting the IT and Legal departments to list out the steps each will take upon the sending of a legal hold notice.

When the review itself begins, the use of a core team of attorneys who are dedicated to the client over long periods of time and on multiple projects will enhance efficiency and contain costs on all subsequent review projects. This dedicated team will help provide guidance on each subsequent project for culling techniques, familiarity with your company acronyms, privilege terms, in-house and outside counsel names and the ability to track metrics will, working together, provide the most cost-effective review project.

Being proactive takes time and money on the front end, but that’s the short-term view. These costs will be recouped tenfold when you’re hit with your next e-discovery project and put the plan into action, so it’s time and money well spent. And when successfully implemented, maybe you’ll have the inkling to utter that famous Hannibal Smith line (George Peppard version, of course) from the A-Team: “I love it when a plan comes together.” Cigar optional.

Maybe we should explore who represents the Face, Murdoch and B.A. Baracus characters. ...
 

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