Edisclosure – Art or Science?

16 July 2013 by Adrienn Toth

Congratulations to Kroll Ontrack for being placed in the Leader section of Gartner’s Magic Quadrant for e-discovery software.  It has been a long road and we are pleased to have made it.  You can read more about this by following this link - http://online.wsj.com/article/PR-CO-20130613-908336.html and download a full copy of the Gartner Report at the following site http://www.krollontrack.com/ediscovery-magic-quadrant.

Given my background in U.S, ediscovery and my current role as a Discovery Services Consultant in the U.K. it was my original intent to write my first blog on some of the similarities and differences between U.K. edisclosure and U.S. ediscovery.  However, following the Gartner announcement my thoughts turned towards the definition of a leader in an industry, where what we do on a daily basis is sometimes difficult to define. Add to this a friendly debate with one of my colleagues on whether our discipline falls into the school of art or science and I believe I have my first post.

I am conceding to my colleague, partially at least, because edislosure is both. At the core of both science and art are tried and tested methods that inform good decision making, whether that’s using the correct statistical model for a data sample or the proper method for the shading of scenery.  Similarly, our industry requires defensible methods that draw on both technological expertise and its artful application when it comes to using disclosure / discovery strategies and the technology available to comply with duties and win a case.

So with the recent changes to the Civil Procedure Rules (CPR) in England and Wales and the proposed amendments to the Federal Rules of Civil Procedure (FRCP) in the U.S. it is good to recognize the fundamentals of ediscovery / edisclosure and brush up on a few of them:

Start Early:  Early Data Assessment (EDA) and Early Case Assessment (ECA) are more than buzzwords. Understanding the relevant data custodians and the data types they work with early on in a case will not only help you prepare a more accurate budget for the Case Management Conference, but will help eliminate surprises. Our industry is full of scenarios such as the dreaded “closet full of back-up tapes,” or the ramshackle room full of paper the CEO keeps because he “never trusted computers.”

Start Even Earlier:  Instead of only Early Case Assessment consider Early Client Assessment. Partner with a consultative provider who can ask the right questions of your client before a case is commenced.  Does your client have a data retention policy? Equally as important: do they follow it (question IT as to whether they really do follow it)? If your client doesn't know where their data is, help them undertake a data mapping exercise. I once discovered an entire database of relevant materials in a custom designed database because someone in the department liked to “dabble in MS Access.”

Malleability: Change is inevitable. It seems intuitive enough but planning for malleability and choosing the right technology to assist you can save time and money, potentially allowing you to stay within budget.  Whether change occurs at the beginning of an investigation when five more data custodians are added, or in the middle of productions to a regulator when a related, but previously not considered, product is now at issue, make sure you've asked the “what if,” questions and received the right answers early enough to plan for contingencies.