By Andrew King

Mention discovery to most lawyers and the first thing they think of is cost, complication and burden – not a great starting point!

This is at the same time as the discovery process continues to be an integral part of any litigation or investigation.

The challenges with discovery are not new, although they are compounded by the sheer volume of documents that now exist. With data volumes doubling every 18-24 months, this creates considerable impacts with the document volumes now experienced in most matters.

As a result, it is very easy for the costs associated with the discovery process to quickly spiral out of control.

With so much changing so quickly, it is important to ensure that you are approaching eDiscovery in the most effective way possible.

Working smarter

It can be easy to lose sight of the true objective of any discovery exercise. This should be to facilitate a method of getting to the most important information quickly, cost effectively and accurately.

Having worked with eDiscovery exercises for the best part of 20 years I realise we need to be a lot smarter in how we approach discovery to meet this objective. Often, practices used in the past will no longer work, or they will only add further cost, time and complexity.

The discovery process today does require more front-loading of work. This work will assist in limiting the scope of discovery to what really matters providing considerable value later in the process. The time invested at the outset could save thousands down the track, not to mention lessening the burden for you and your firm.

These are exciting times, as there are now options to help take some of the cost, complication and burden out of the discovery process. If you are prepared to continue to evaluate your eDiscovery practices every 12-24 months, you will ensure you are approaching the discovery process in the most effective way possible.

An eDiscovery health check is a great way to start

A great starting point is to get a fresh perspective of how you currently approach the discovery process.

Even if you are currently satisfied with your existing eDiscovery process and software, an independent perspective will help you approach the discovery process efficiently and cost effectively. Again, I stress impartial advice – not solely from those with a product or service to sell.

It can be a great opportunity to find out what others are doing – is their discovery approach giving them an advantage over you?

A typical eDiscovery health check will usually consist of –

• A discussion of what you are currently doing (with both your process and software) plus what you are looking to achieve; and
• Practical recommendations to improve your eDiscovery process.

The health check can be as simple as a phone conversation with some easy to implement recommendations. This perspective can help with how you approach all matters, that you can then adapt to suit the specifics of the case.

It is not all about the technology

Far too often when eDiscovery is mentioned, attention first turns to the technology. Sure, embracing the right technology is important, although first you need to consider your wider approach to discovery – with the technology being part of your wider approach.

It is important to work out what you want to do and then equip yourself with the tools to achieve this. This may be completely different to other firms that could have other requirements.

Don’t get me wrong; some of the eDiscovery technology available today is fantastic, and I wish just some of the tools were available a few years back. Sometimes it is the small incremental changes that can help simplify your discovery process. These changes can help save you and your client considerable time and money by simply ironing out any efficiencies in your process.

How can we do this better

Discovery practises continue to evolve, largely due to the impact of technology. Yet these are also exciting times, as we can approach discovery more effectively to remove much of the cost, complication and burden.

To ensure you are approaching eDiscovery in the most effective way possible it is crucial to regularly evaluate your eDiscovery practices. A fresh perspective with some practical recommendations may be just what you need.

Andrew King andrew.king@e-discovery.co.nz is the founder of E-Discovery Consulting.