e-Discovery Team ®

Electronic Discovery Best Practices, EDBP.com, is now open. Come visit! 

EDBP is a new reference of legal best practices for practicing attorneys and paralegals. It is also an open project where other specialists in the field are invited to make contributions. I am writing the beginning statements of best practices (about half-way through) and will serve as the first editor and gate-keeper for future contributions from others. The ten-step diagram below serves as the basic structure of the tasks performed by attorneys in electronic discovery practice. This structure may also change with time to keep up with evolving attorney practices.

All flow charts look somewhat alike and so there is necessarily some similarity in appearance with the traditional EDRM chart. But otherwise there is no connection with that chart or fine group. Even the overlap in coverage between the Electronic Discovery Reference Model and Electronic Discovery Best Practices is limited. Unlike the EDRM, the EDBP does not attempt to cover all activities that go on in e-discovery, only the legal service components. Further, the EDBP is not concerned with any vendor activities or best practices. It is only concerned with legal services. The EDBP is by and for lawyers only, and the fine paralegals that assist them. For a complete statement of the purpose of EDBP, see its Mission Statement. Also see the EDBP home page for information on who can contribute to EDBP and how. Membership is not required. Join in the comments there and get in on the ground floor of this new project.

Below is what we call the EDBP chart with bullet-points. It is intended to summarize the coverage and meaning of the six vertical columns of the chart. All of these charts may be freely used by others, but we ask that you provide attribution and link to EDBP.com.

Quick Overview of the 10-Step EDBP

The first step in attorney work flow for electronic discovery is Pre-Suit Activities to be prepared for litigation. That is the grey box on the left. There is far more to pre-suit Litigation Readiness that information management, but that is part of it. The next steps – two, three, four – in the vertical blue colored boxes are all Preservation related activities. We have made good start in writing up the best practices for these key first four steps. The fifth step, in the box colored in red to reflect the reality of a litigator’s world of dispute resolution, stands for the basic task of Cooperation and communication. As you can see from the bullet points, Cooperative Dialogues with Opposing Counsel and Judges is a big component of attorney best practices. We have not begun writing up  these best practices, but you will see them unfold in the next several weeks. You are invited to join the dialogue and contribute.

The next green colored boxes- steps 6, 7, 8 – are all document Search and Review related. We already have substantial descriptions of best practices for these steps, but nothing at EDBP is ever complete or final. The ninth step, shown in yellow, stands for Productions, where the “s” at the end for plurality is intentional and important. The descriptions for this and the last step remain to be prepared. The final step, the tenth step, is for the key lawyer task of introduction of Evidence. The EDBP chart is lawyer-centric and covers legal services, not vendor services. Lawyers provide e-discovery services for their clients to put ESI into evidence, not make presentations. We will include here best practices for the admission of evidence and evidentiary objections, as well as best practices related to motions to compel, for protective orders, and for spoliation and sanctions.

Attorney Best Practices, Not Vendor Standards

I have been working on the creation of best practices for two major law firms over the last six years. In my blog two weeks ago I mentioned that my work on this new lawyer-centric model was nearing the public stage. Analysis of the Official Report on the 2011 TREC Legal Track – Part Two. As I explained then, my work is not on standards, Jason Baron and others are working on that. I understand they are focused on vendor ISO type standards. EDBP is instead focused on best practices for law firms and corporate law departments. The EDBP model does not include vendor activities.

Best practices in the field of law is something very different from standards. Standards represent a kind of base-line agreement of minimal requirements. It is consensus driven and often local in nature. Failure to meet such customary standards of care in legal practice is considered professional negligence. EDBP is not concerned with what a reasonably prudent lawyer in a particular jurisdiction would do. EDBP is instead concerned with what the best lawyers in the world would do. It is concerned with aspirational best practices and extraordinary jurisprudence, not reasonable standards of care or ordinary prudence. The knowledge, skill, and ability ordinarily possessed and exercised by other members of the Bar similarly situated, which is the base standard for legal malpractice, is worlds away from Electronic Discovery Best Practices.

The creation of the legal best practices is not an academic undertaking, although study and learning are a prerequisite to their development. Best practices come out of actual practice, trial and error. They come out of constant refinement and improvement, learning from mistakes and successes. Best practices are born from knowledge and experience, and high skill levels, but they also born from experimentation and inspiration.

In any field, best practices are usually developed by a few creative leaders. The same is true for e-discovery. I have had the good fortune to personally know most of the leaders in electronic discovery, especially other attorneys, and if not, I have studied their works. The articulation of best practices in EDBP represents a compilation and amalgamation of the thoughts and leadership of many, including especially the many e-discovery writings of The Sedona Conference®  Working Group 1 on Electronic Document Retention and Production. The EDBP  will also include the few attempts by other practitioner groups to articulate best practices in e-discovery. See New York State Bar Association’s Best Practices In E-Discovery In New York State and Federal Courts (2011) (14 guidelines). Most (but not all) vendor statements of best practices are, however, barely worthy of attention. So too are most writings about best practices that are more than a few years old. Best practices change fast in e-discovery law. Today’s best practices are tomorrow’s standards.

Goal of EDBP

The goal of EDBP.com is to articulate these fast evolving best practices in an ongoing collaborative project. We have created the new chart and EDBP web to serve as a base and frame of reference for attorneys worldwide.

The EDBP.com web provides a full description of the new chart, as well as a beginning description of best practices. Please go check it out and bookmark it for future reference. Also, if you are an experienced practicing attorney or paralegal, please consider making a contribution. The details are all explained on the EDBP web.  Here is a screen shot of the top of one of eight basic pages on this new web.

Conclusion

The articulation and judgment of best practices for attorneys in the field of electronic discovery law is an ambitious undertaking. No one person can establish best practices for an entire field of law, even if they do synthesize the thoughts of others, and even if it is a niche practice. That may have been possible in the past, but not today. I well realize this. In our Internet Age no significant undertaking can succeed unless an online community self-organizes to collective action. No one can make it happen. All anyone can do is facilitate and lay the ground work. Build it and they may come, or maybe not.

This means that the success or failure of Electronic Discovery Best Practices is in your hands. If you join with me and other members of my e-discovery team to help establish best legal practices, then the project will succeed. Otherwise not. It is that simple.

I hope that you will join in and make a contribution. Not for my sake, but for your own sake and for the legal profession we hold dear. We know that the Law is struggling under the crushing weight of too-much-information and technology generated future shock. Too much has changed too fast. We cannot allow the needles of truth we need for justice in a case to be lost in exabytes of ESI. We cannot allow technological incompetence in the Bar to ruin our profession. We cannot allow litigation to become a game of chance and shadows.

We all know that the basic problems of e-discovery overwhelm the average legal practitioner. We know that the vast majority of attorneys in our profession are still avoiding e-discovery altogether. Ask any judge. We need to do all we can to try to get attorneys back on track. A CLE program here and there is completely inadequate. So too is delegation of traditional legal tasks to non-attorneys, to vendors. So too is delegation to the next generation of attorneys with the blind hope that they will just figure it out by themselves. We have to take the time to share what we know with the larger legal community.

At this important juncture in history the legal profession needs a clear understanding of best practices in discovery. We need thousands of competent lawyers who can discover the truth hidden in our computer systems in a cost-effective manner. To get there we need to collaborate and share. We need to help each other to spread the word and stay current with best practices. We need to talk about best practices, both in dialogue and debate.

It is misguided to think that you will lose a competitive advantage by sharing what you know. There is always a huge gap between knowing a best practice, and actually being able to carry it out. You will not lose anything by sharing, but the entire profession could gain.

EDBP is designed to be a central clearing house of best practices to help attorneys who want to learn now, and to help future generations who will be handed this mess. This happens every day. Associates coming out of law schools start work at countless law firms across the globe where no one knows how to do e-discovery, much less best practices. Take the time here to help them out.

Think about your legacy and what contributions you want to make to our system of justice. Take the time to study EDBP and submit write-ups of best practices you have developed. Or help us to refine what has already been written. You can make a real  difference, but only if you take action.

This entry was posted on Sunday, September 30th, 2012 at 3:29 pm and is filed under Evidence, Forensic Exam, Lawyers Duties, Metadata, New Rules, Related Legal Webs, Review, Search, Spoliation/Sanctions, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.