e-Discovery Project Scoping: Anticipation Exercises

by Matthew Verga - Modus on July 10, 2015

Litigation Support , Product Spotlight , Review & Production

Modus_LogoThe following post was first published by Modus, a Relativity Premium Hosting Partner, a few weeks ago, kicking off a series on e-discovery project scoping. We wanted to share their tips for how case teams can determine project scope early on. Visit their blog to see the other two parts in the series.

One of the great and oft-cited frustrations of e-discovery is the difficulty of assessing the scope, scale, and potential cost of a new project. Particularly for organizations that are periodic rather than serial litigants, variability can seem the order of the day. Different legal actions implicate different types of sources and materials. Different types of sources and materials require different approaches to collection, handling, and processing. Different approaches carry different costs, durations, and choices. And, of course, all of the sources, materials, and approaches are themselves increasing in both number and diversity.

With such an overwhelming number of potential variables, scoping a new project can seem an impossible task. Thankfully, it is not. Perfect prediction is never possible, but successful scoping almost always is. This blog series will provide guidance on how to think through the scoping of e-discovery projects by breaking the process down into five discrete exercises:

  1. Anticipation
  2. Prioritization
  3. Investigation
  4. Exemplification
  5. Estimation

ANTICIPATION

To successfully scope an e-discovery project, the first exercise that must be undertaken is anticipation. The anticipation exercise requires the involvement of individuals with direct knowledge of the legal and factual issues relevant to the legal action giving rise to the e-discovery project, as well as some knowledge of the organization’s IT systems. Generally, this means in-house counsel, corporate IT, outside counsel, and at times, other corporate employees with direct knowledge of the underlying subject matter.

The goal of the anticipation exercise is to use what is known about the relevant legal and factual issues to extrapolate what potentially relevant materials are likely to exist within the organization, which of those materials you are likely to need, and which of those materials your parties-opponent are likely to seek. Your starting place for this exercise will typically be the complaint, but it may also be a preservation notice, an agency directive, or an incident report.

Regardless of the starting point, the intellectual exercise is similar:

  • What events or actions are in dispute or under investigation?
  • What questions need to be answered internally about those issues?
    • What materials within the organization might help answer them?
  • What questions are parties-opponent likely to have about those issues?
    • What kinds of materials might outsiders imagine exist and request?

This is an exercise that can be aided by source checklists like those used for custodian interviews, but it is a fundamentally imaginative exercise. Imagine the events at issue; imagine them in the context of normal organizational operations. What potentially relevant materials might have been generated by the organization and its employees, when would that have been, and where might they be?

  • Might there be departmental records, like HR files?
  • Could there be useful data in our ERP systems?
  • Would employees have discussed it via the internal chat client?
  • Maybe that office used some shared network folders?
  • Perhaps unique records exist on the backup tapes?

Your goal here is not to imagine every possible scenario but to imagine the most plausible ones for your case and your organization. Less experienced e-discovery practitioners can be aided in this imagining by an experienced service provider who can provide examples from other, similar projects.

Beyond just imagining potential sources within the organization, it is also beneficial to imagine what hallmarks relevant materials from these sources might bear, i.e. how you would expect to find them if searching a collected data set: 

  • Are you looking for contracts with a certain party or executed on certain dates?
  • Will relevant documents contain certain keywords, like a project name?
  • Are you looking for evidence of an employee altering spreadsheets?
  • Evidence of intent in communications between certain employees?
  • Evidence of internal awareness in executive meeting minutes?

Anticipating what your imagined materials might contain and how you might find them, will be useful as you move forward to the Prioritization and Investigation exercises.

In Part 2, we will continue our discussion of e-discovery scoping with Prioritization and Investigation. In Part 3, we will conclude by discussing the exemplification and estimation exercises.

Matthew Verga is director of content marketing and e-discovery strategy at Modus, a Relativity Best in Service Premium Hosting Partner.

 

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