by Hunter McMahon & Sara Skeens - Altep on October 07, 2016
Surviving e-discovery can be just like conquering an obstacle course race (OCR). It takes the right gear, experience, training, and attitude. As obstacle course enthusiasts and e-discovery strategists alike will tell you, you don’t get to choose the course or the obstacles—they are given to you “as is.” Therefore, preparation and agility are key characteristics of a true OCRer.
As you approach the starting line, adrenaline starts to pump and nerves make your stomach begin to churn. Have you prepared enough? Are you ready to run the next three miles and overcome a series of obstacles? The pistol cracks and you start to run, and then the real physical and mental stress sets in as you approach the first obstacle.
Your preparation and training have taught you to assess the situation in front of you and leverage any and all tools or techniques you know to conquer it. Your coach has helped you prepare to mentally overcome the fatigue and pain, and for good reason. Obstacle course racing (the other OCR) forces us to face fears and remain agile in response to the unknown.
Similarly, e-discovery often plays out like a set of obstacles in a race against money and time. Like obstacle course racing, having the proper tools, training, and plan allows you successfully conquer the e-discovery process. Let’s explore the basics to prepare, plan, and execute an impeccable e-discovery obstacle course race.
Gear is Important: Not All Technology Is Created Equal
Understanding what technology you want and need, and what options will really work for you, is a crucial evaluation that happens before you begin any engagement. You must assess not only the technology, but how it aligns with your other available resources, as well as with your timeline, costs, and other risk factors. A platform may have cool features and yet may not be the right choice.
For example, if you are preparing for a short race you may opt to carry little to no hydration (e.g., water bottle only—no hydration packs or gels). Similarly, in e-discovery if you are looking at a small case with simple data, you may be able to save money with a traditional review.
In contrast, if you are training for a longer race with likely inclement weather and untried obstacles, you’ll probably want to invest in some gear that will allow you to adapt, such as energy gels and gloves. The same is true in e-discovery: when dealing with a larger and more complex data set and/or discovery scenario, such as multi-district class actions, protected health information, and so on, a robust platform may be prudent. Features such as automated redactions and privilege logs can be extremely beneficial, especially when an unforeseen obstacle complicates timelines.
You never want to break in a new pair of shoes during a race, however. The same goes for trying out new technology: you never want your first experience with it to be in a critical situation or under a tight deadline. Make sure you get a few training runs or proof of concept projects done before it’s go time.
Ask the Veterans: Experience Matters – Leverage It
Most obstacle course races intentionally include some element of the unknown. While e-discovery may not have intentional curveballs, it does have inevitable surprises. A racer who has had experience in dealing with new obstacles and surprises has a distinct advantage over newbies, and asking the veterans around you to share their experience, and leaning on them while developing your strategy, is a smart tactic.
Previous experience is important, but so is understanding that there are several layers to e-discovery and litigation. Being an expert in each area is nearly impossible; the evolution of technology is constant, and it requires significant dedication to keep up with ongoing innovations. That said, nothing can replace real-world field experience.
In OCR, if you run short-distance races your knowledge is around that type of race and those obstacles. There are coaches who have specialized experience with other race distances, training for speed or obstacle completion, nutrition/fueling, and other aspects. The coaches are in the field every day. They are aware of new gear and training techniques, and have seen real-world applications. They leverage their perspective to help individual athletes achieve their highest potential.
e-Discovery experts who are in the field every day are aware of new and emerging trends, as well as gaps and common problems. They can often foresee problems before they occur, and have a plan (and three backups) that they can readily put into play to mitigate the risks implied by such problems. Like OCR coaches, these experts leverage their experience to help ensure that each e-discovery project they’re involved in runs as smoothly and efficiently as possible.
Set Realistic, Adaptable Goals: Walk Before You Run
Proper planning is critical in both OCR and e-discovery. Evaluation of resources, capabilities, and tools is a must-do, because in both endeavors, setting out down a path without a clear strategy is a recipe for disaster. Above all, adopting a measured approach is key—whether you’re running a race or running a TAR project, jumping in head first and over-extending yourself will only leave you hurting.
You have to have a plan. While many will have a plan for race day, too many OCR newbies think they can “wing it” when it comes to training. Sure, you’ll probably survive, but it will be painful. A well-developed training plan that keeps you on track to achieve intermittent goals is critical to your overall success.
Don’t suddenly try to pull all aspects of your e-discovery efforts in-house within a month without having the necessary infrastructure or expertise to handle all of the variables that will surely be thrown your way. Instead, consider taking more control of the process by hiring experienced litigation support personnel and developing advanced review workflows. Conduct a Request for Information process to identify and adopt an offering that will permit a great deal of control with little or no infrastructure management.
And please don’t sign up for the Spartan Ultra Beast as your first OCR when you haven’t run more than a 5K in 10 years. Set an initial goal to join a Spartan SGX group and complete a Spartan Sprint. Better yet, Relativity Fest 2016—an excellent opportunity for the education, training, and new experiences e-discovery practitioners need to thrive—will also include its first Obstacle Course Race Challenge on Wednesday morning. Will you be there? Are you ready?
Regardless of the type of race you’d like to run, develop a strategy that is flexible and will allow you to adapt to new obstacles, adjust your goals periodically, and rise to meet the unexpected challenges that will almost certainly come your way.
Hunter McMahon is vice president of legal and consulting services at Altep, an Orange-level Relativity Best in Service Partner. Hunter’s background in both law and technology provides clients dual insight into complex investigative and discovery matters, often surrounding ESI. Hunter acts as a 30(b)(6) witness and as an e-discovery liaison for clients, advising on all stages of the EDRM in effort to increase defensibility, efficiency, and reasonability of the e-discovery process.
Sara Skeens is a consultant for advanced review and analytics with Altep’s litigation consulting group. She has over 10 years of experience providing solutions and workflow guidance to case teams and enterprise clients in the areas of preservation, review, analysis, production, and presentation. She is a Relativity Certified Expert and has held positions in law firms, government, and providers working in both criminal and civil litigation, as well as investigations.