Throughout my nearly two decades of working in the world of eDiscovery, attorneys have been looking for the “silver bullet” solution to meeting the demands of due diligence in this area. The “silver bullet” is a term used to describe the quest for a particular piece of eDiscovery software that works with the collection, process, review, and production phases of ESI in such a way that the exposure to malpractice is reduced.
Rather than seeking the silver bullet, law firms should devote the same time and energy to crafting a best practice protocol of managing eDiscovery in their cases, one that speaks to the prevailing and voluminous law now extant in all the federal circuits.
As an awareness of the risks involved in working with eDiscovery has increased, so has the desperation among the Bar. The much published and read about draconian sanctions that came about with the 2006 Amended Rules that introduced the term “Electronically Stored Information” (“ESI”) are now legend. And with the costs often associated with collecting, processing, and reviewing ESI, the hunt for the silver bullet has been on.
The bad news is, there is no silver bullet solution to the exposure which litigators face when working with ESI (hereinafter the friendlier term, “eDiscovery”). The good news is … there is no need for the silver bullet. That is why one does not exist. Software is a tool to support a best practice protocol of working with eDiscovery, not a solution to the exposure of malpractice in working with it.
That is why Principle 3 of The Sedona Conference Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E—Discovery Process states that “[r]esponding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process.” Rather than seeking the silver bullet, law firms should devote the same time and energy to crafting a best practice protocol of managing eDiscovery in their cases, one that speaks to the prevailing and voluminous law now extant in all the federal circuits. Then, it is simply a matter of executing the protocol to enhance defensibility of practice.
This approach is the foundation upon which Research Data, Inc.’s eDiscovery Practice has been built. RDI can efficiently analyze information regarding a case, and determine which pieces are of utmost importance, primarily through advanced analytical tools. RDI’s approach of working closely with clients throughout the course of a case, as well as never having any hosting fees, is what makes RDI the boutique eDiscovery company.
About Author: Michael Yager
Michael Yager is an expert in eDiscovery, a published author, speaker and trainer on compliance with state and federal eDiscovery protocols. Michael has spent over 20 years in eDiscovery support. If technical knowledge of standards is what you need, Michael is your resource! Michael brings to RDI a vast knowledge of eDiscovery — the ins and outs of day-to-day issues with ingestion, culling, production and review. Michael is a graduate of The College of William and Mary. His experiences include serving for the Department of Defense, on the corporate staff of Bell Howell Corporation in Chicago, and in law firms.