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To Win Cases, Turn eDiscovery Upside Down

Most litigators haven’t yet realized that expert search can bring forth the key documents that can help them craft their eDiscovery strategy.

There are certain strategy decisions made by litigators that separate the good from the great. Unfortunately, not enough of them relate to eDiscovery.

No doubt, the task of identifying the documents that support a client’s best interests or obligations can be an exhausting undertaking. But too often, eDiscovery strategy is a guessing game that is a bit too far removed from the goal of winning the case. Factoring in budgets and deadlines, the objective of winning – specifically the best actions necessary to achieve the greatest chance of a successful outcome for the client – may not even be a primary consideration when crafting the eDiscovery plan. A fishing exercise at best, discovery requests too often cast a wide net rather than seeking to reel in the best catch.

eDiscovery strategy, at its most basic, is (or should be) crafted to unearth facts that support or disprove the overall theory of the case. It can be an ever-changing plan because presumptions supported or undermined by the effort might shift the target, leading to a hunt for a different set of facts.

In truth, within the massive document collections that define most eDiscovery efforts today, a scant few documents rise to the level of evidence; more just offer insight into how the eDiscovery plan itself could be tweaked to find other documents of greater import. As the key documents are finally revealed, they rise from the eDiscovery bubble to the overall litigation strategy that is focused on winning. No matter how voluminous the document population or exhaustive the eDiscovery effort, it’s a rare matter where there are more than 50 documents that truly impact the outcome.

Perhaps litigators have resigned themselves to a reality where finding those few vital documents—and the strategy-influencing information within them—is predicated on an eDiscovery process that makes its way through massive document volumes until it’s sufficiently tweaked and targeted to bear the fruit the litigator actually needs to win the case. Or, could it be that most litigators have not yet realized that technology, wielded by experts, can relieve them of this exasperating exercise in patience by serving up dessert first?

It’s routinely possible to access the value of key documents earlier, sometimes even before an eDiscovery plan is crafted and launched. In this day and age, search experts, utilizing advanced technology and linguistic expertise, can find key documents within large document populations with an ease that may be surprising. Their experience leveraging advanced searched technologies is buttressed by their understanding of how legal claims may be practically expressed by the language used within email communications, corporate reports, and other data typical of custodians. Even a partner’s hunch can be quickly investigated and then dismissed as unlikely or substantiated.

A litigator that is armed from the beginning with even a handful of key documents can formulate a far superior eDiscovery plan. One key document could help eliminate certain custodians (and costs along with them). One key document could help the litigator more accurately prioritize certain legal theories and the other communications most likely to contain facts supportive of those theories, lighting the route to victory. One key document could help the litigator expand the document collection effort today, avoiding the surprise blind spot later that will cost more to fix when time, budgeted dollars, and patience are at a premium. One key document could help make the eDiscovery plan part of a winning strategy while simultaneously mitigating the cost and deadline pressures that too often dominate how eDiscovery plans are crafted in the first place.

Technology sometimes turns entire industries on their heads. More often, technology and its effective use can change processes and perspectives in small ways that, while less dramatic, are impactful. A litigator can now have cake and eat it, too. Instead of seeing key documents as the end result of an eDiscovery burden, key documents can be found today to influence the entire case strategy–including eDiscovery.

Learn how H5’s Key Document Identification can help you target the documents that can help you tailor your eDiscovery effort.


Image: © Can Stock Photo / AndreyPopov

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