eDiscovery Daily Blog

For Your Project to Succeed, You May Need To Be a “Debbie Downer”: eDiscovery Best Practices

Everybody knows somebody like this.  In eDiscovery terms, it might sound like this:

“The zip file will probably be corrupt and we’ll probably have to spend a lot of time trying to repair it.”  WOMP WOMP!

Or this:

“We’ll probably have a lot of turnover with the review staff and we won’t get the review done by the deadline.”  WOMP WOMP!

Let’s face it, most of us would prefer to be positive about how our eDiscovery projects will turn out (not to mention about life in general).  But, problems happen in life and, unfortunately, in most litigation projects as well.  If you’re not willing to look at the bad things that could happen and create a plan to avoid them, your project could be derailed and you could wind up spending more than is necessary, missing deadlines, or both.

That’s where a “pre-mortem” comes in.  Like a “post-mortem” enables you to correct problems encountered after the fact for the future, a “pre-mortem” enables you to anticipate problems in the first place and create a plan to prevent those problems from happening.  On many projects that I’ve worked on, we’ve conducted a “pre-mortem” to brainstorm what can go wrong (i.e., the risks) and identify a plan for mitigating each of those risks up front, then revisit regularly (typically, weekly if not more frequently) to monitor the plan for proactively addressing each risk.  This exercise can avoid a lot of headaches during the project.

Potential problems can happen throughout the discovery life cycle, so the “pre-mortem” list of potential problems will often evolve over the course of the discovery process.  Here are a couple of examples:

  • Data anomalies and exception files will slow down processing and cause us to fall behind in preparing data for review: As we noted over six years ago(!), exceptions are the rule and you will frequently encounter exception files that cannot be processed (or require considerable effort to process). Some “pre-mortem” steps to address this issue are to: 1) proactively discuss (and hopefully agree) with opposing counsel on how to handle these files in a manner that minimizes the time to attempt to correct those files and 2) establish a procedure for setting aside these files (when possible) while loading the remaining problem-free data.  Removing these potential roadblocks to getting data ready for review will help keep the discovery process moving and on schedule.
  • Review will take longer than anticipated and we will miss the production deadline: There are several measures that can be utilized to avoid this issue, including: 1) obtaining as much information about your document collection as possible up front, including number of documents, how many emails and attachments you have, how many domains those emails represent and also how many email conversations are encompassed with those emails, etc.; 2) prepare complete and clear review instructions for your attorney reviewers; 3) estimate the number of reviewers and expected throughput for review; 4) conduct a pilot review with a few reviewers to compare actual results to estimates and adjust estimates (and review instructions) accordingly; 5) exceed (at least slightly) the number of estimated reviewers to provide some leeway and 6) monitor progress daily and adjust quickly if productivity starts to fall behind.

By identifying what could go wrong up front, creating a plan to avoid those issues and monitoring the plan regularly to proactively address each risk, you can keep those problems from happening in the first place.  You may generally be an upbeat person who even “wears rose colored glasses” from time to time, but you may need to find your inner “Debbie Downer” at times to help your project succeed.

So, what do you think?  Do you put your “Debbie Downer” hat on at the beginning of your project?  Please share any comments you might have or if you’d like to know more about a particular topic.

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Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.