Litigation Readiness: A Practical Approach to Electronic Discovery

160 Pages·2011·0.68 MB·English

by  Prashant Dubey

Litigation Readiness
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Litigation Readiness
A Practical Approach to Electronic Discovery
Prashant Dubey
and

Sam Panarella
1
1
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Library of Congress Cataloging-in-Publication Data
Dubey, Prashant.
Litigation readiness : a practical approach to electronic discovery / Prashant Dubey, Sam Panarella.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-538407-9 ((pbk.) : alk. paper)
1. Electronic discovery (Law)—United States. 2. Electronic discovery (Law) I. Panarella, Sam. II. Title.
KF8902.E42D83 2011
347.73’072—dc22
2010037536
______________________________________________
1 2 3 4 5 6 7 8 9
Printed in the United States of America on acid-free paper
Note to Readers
Th is publication is designed to provide accurate and authoritative information in regard to the subject
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CONTENTS
Foreword xiii
Introduction xix
1. A Framework for Litigation Readiness 3
1.01. An Organized Business Process — Five Key
Components 3
[A] Components of a Business Process 4
[1] People 4
[2] Process 5
[3] Technology/Tools 6
[4] Management Controls 7
[5] Metrics 7
1.02. Th e Consequences of a Lack of Business Process 8
[A] Risk, Cost, and Cycle Time 8
[1] Risk 8
[2] Cost 8
[3] Cycle Time 9
1.03. Th e Business Process of Litigation 9
[A] Th e Mechanics Behind Good Lawyering 9
[B] Th e Six ( + 2) Basics of E-discovery 10
[1] Identifi cation 10
[2] Preservation 12
[3] Collection 14
[4] Processing 14
[5] Review 15
[6] Production 16
1.04. Decision Framework to Support Discovery Process 16
[A] Balancing Cost, Risk, and Cycle Time 16
1.05. Guiding Principles 17
[A] Narrative Plans Fall Short 18
[B] Create a Plan People Will Use 18
[C] Perfection Not Required— Just Good Enough Is Preferred 19
2. A Business Process for Litigation Readiness 22
2.01. A Foundation for Continuous Improvement: Assessment,
Planning, Implementation, and Embedding 22
2.02. Planning + Execution = Success 23
2.03. Four Steps to the Business Process 23
2.04. Big Bang vs. Iterative Approach — Th e Technology Elixir 23
2.05. Continuous Improvement Focus 24
2.06. Assessment as a Basis for Establishing Proportionality 24
2.07. A Balance Sheet Look at Litigation Readiness 25
2.08. Assessment as Minefi eld 25
2.09. What Makes You Special? 26
2.10. Discovery Response Planning vs. Discovery
Response Plan 26
2.11. Internalizing Your Culture 27
2.12. Implementation: 5 Parts People, 1 Part Tools 27
2.13. Th e People Factor in Litigation Readiness 28
2.14. Embedding: Back to the Basics of Change Management 28
2.15. Outside Counsel Role in Litigation Readiness — Bring
the Outsider In 29
2.16. Choosing the Right Outside Counsel 29
2.17. Horizontal vs. Vertical Expertise 30
2.18. Get Outside Counsel Involved Early 30
3. Assessment, Part I: Th e Fabric of Introspection 32
3.01. A Parable 32
3.02. Self-Assessment 33
3.03. Understand Cost Proportionality 34
3.04. Assessing Discovery Intensity 34
3.05. Company and Industry Litigation Profi les 35
3.06. Identifying the Risks — In Just Good Enough Style 36
3.07. Corporate Cultural Shift Required 37
3.08. Confronting Reality 37
3.09. Paper Trails and Tigers Only, Please 39
3.10. Assessing Current Practice/Process — Documenting
the Gaps 39
3.11. ESI Content Map Defi ned 40
3.12. Assessment Should Be Broad-Based 40
3.13. Knowing Th yself 41
[ vi ] Contents
3.14. Is the Assessment Discoverable? 41
3.15. Human Dynamics Foundation for Embedding Process — Get
Your Cohorts Talking to Each Other 42
3.16. Defensibly Diverse Processes 42
3.17. Th e Linear/Nonlinear Process 43
3.18. Relearning Your Job 43
3.19. Trust Your Employees 44
4. Assessment, Part II: Internalizing Introspection — Metrics, Gaps,
and Assimilation 46
4.01. Measuring for E-discovery Mastery 46
4.02. Baby Steps 46
4.03. Ad Hoc to Value Added 47
4.04. Setting a Baseline for Litigation Readiness 48
4.05. Questioning the Way Th ings Are Done 48
4.06. Real Gaps, Real Consequences — People, Process, and
Technology Gaps 49
4.07. Risks in Preservation 49
4.08. Creating a Framework for Risk Profi le 50
4.09. Th e Story in Data 51
4.10. Drilling Down to Find the Gaps 51
4.11. Assimilating and Interpreting the Results —S ecret
Sauce 52
[A] Better, Faster, Cheaper 53
[B] What Is “Just Good Enough”? 53
[C] Good Enough = Good Faith 54
[D] Achieving Proportionality 55
[E] Predictable, Defensible 55
4.12. Taking Action 56
[A] Much Ado About Nothing? 56
[B] Nonbelievers Unmasked 56
[C] Action = Desired Outcomes 57
[D] Mix in a Little Politics 57
[E] Distributing Ownership 58
[F] Truth Telling 59
5. Process of Planning Precedes Permanence of Plan — aka
Change Management 60
5.01. Planning Begins with Introspection: Socializing
the Assessment Results 60
5.02. Th e Urgency behind Socialization 60
Contents [ vii ]
5.03. As the Wheels Turn 61
5.04. Th reat or Opportunity? 61
5.05. Elements of Socialization 62
5.06. Taking the First Step: What Comes First, Risk or Cost?
Striking the Balance 63
[A] Risk vs. Cost Gaps 63
[B] Documenting the Documentation Philosophy — Don’t Fear
the Old Plan 64
[C] Th e Urgency to Recognize the Inevitable 64
5.07. Taking the Organization’s Temperature — Place It under Your
Tongue and Stay Still 65
5.08. Is 100 Percent Required? 65
5.09. Discoverability of the Plan 66
5.10. Purpose of the Plan 66
5.11. Wiggle Room in Policy, Process/Plan, Protocol: Defi ning
“Plan” 67
5.12. Th e Th ree “Ps” 67
[A] Process/Plan 68
[B] Protocol 68
[C] Policy 69
5.13. Time to Build Your Planning Team — Charter, Staffi ng,
and Operating Principles 70
[A] Look Internally for Inspiration 70
[B] Setting the Tone 70
[C] Choosing Key Players 71
5.14. Executive Sponsorship vs. Executive Involvement 71
[A] Demonstrating Top-Tier Commitment 71
[B] Communicating the Commitment 71
[C] Composition of the Team 72
[D] Make It Real 72
6. Th e Discovery Response Process & Plan 74
6.01. Th e Essential Elements of the Discovery Response Plan 74
6.02. Organized Business Process 74
6.03. Th e Eight Steps to Electronic Discovery Success 75
[A] Matter Initiation 75
[B] Identifi cation 76
[C] Preservation 76
[1] Common Legal Hold Mistakes 77
[2] Best Practices in Legal Holds 77
[ viii ] Contents
[D] Collection 77
[E] Early Evidence Assessment 78
[F] Processing 78
[G] Review 78
[H] Production 79
6.04. Th e Details of Discovery: Dissecting Areas of
Greatest Opportunity 79
[A] Nailing the IPC 79
6.05. Th e Players, the Tools, the Controls, and the
Measurements 80
[A] Empowering Your People 80
[B] Th e People . . . Continued 81
6.06. Tools and Technology 83
[A] Software: Buy or Rent? 83
6.07. Measuring Litigation Readiness 84
[A] Gap Analysis 84
[B] Format/Presentation of the Discovery
Response Plan 84
[C] Outside Counsel Guidance 85
6.08. Views on Discoverability 86
6.09. Getting the Message to the Troops 87
6.10. Hard Copy with Intranet Support 87
6.11. Keep, Start, Stop 88
7. Establishing a Litigation Response Team 89
7.01. Defi ning the Offi ce of Discovery Counsel 89
[A] Th e Benefi ts of the Discovery Counsel 89
[B] Liaison Status 90
[C] Key Team Leader 91
[D] Related Benefi ts of the Position 91
[E] Defi ning the Role of Discovery Response
Manager 92
7.02. Building the Team from the Ground Up 92
[A] Obstacles to Building Your Team 92
7.03. Th e Response Team Pyramid 93
[A] Offi ce of Discovery Counsel 93
7.04. Team Structures and Constituencies 94
7.05. Be Specifi c 94
7.06. Key Steps for Building Your Team 95
7.07. What Does a Charter Look Like? 95
Contents [ ix ]