When a case closes, a window opens: Effectively closing out ediscovery matters
The case is over: you’ve settled, won, or — sorry — perhaps lost. Time to put all this behind you and move on, right?
Not so fast.
When a matter concludes, whether it’s after trial or considerably earlier, a critical window opens. Now is the time to corral any wayward data and clean up now-obsolete information, capture the useful work product you’ve generated, and crunch the numbers to determine what went right — or wrong — with your ediscovery process and information management.
We get it: these steps are hard to find the time for. They’re not subject to any deadline, don’t return an obvious profit, and frankly aren’t required by any rule or regulation. While the rest of the litigation and ediscovery pipeline is deadline-driven and externally motivated, this wrap-up process is entirely internal. Only you and your organization can determine its scope, timing, and desired outputs.
That’s exactly why a thoughtful post-resolution analysis is so important. By doing what few bother to do, you gain a tremendous competitive advantage. Indeed, the best — maybe the only — way to truly improve your ediscovery process is to learn from your mistakes and your successes at the close of each case. But how?
Here are three key action items to complete at the end of each matter.
Recover and Clean Up Your Data
If you sent any data out to vendors or law firms for processing, review, or other ediscovery-related tasks, get it back. Ask to have your data returned to you, and follow up until you actually get it. Alternatively, you can ask the vendor or firm to destroy any remaining data and provide you with a certificate of destruction. Remember that anytime you let copies of your data linger on someone else’s systems, you’re leaving your data security and information governance up to them.
Release any legal holds, being careful to distinguish information that was on hold for a resolved matter from information that is still on hold for ongoing cases. Reinstate your normal document retention policies, cleaning up any data that has expired and would have been destroyed but for the legal hold. Remember that retaining outdated information is not a viable strategy for avoiding spoliation sanctions. On the contrary, that obsolete data is more likely to inflate your ediscovery costs while creating unnecessary risks in future cases.
Build Institutional Knowledge
Obviously, you shouldn’t discard all the information you preserved or collected during a resolved matter. Anything that is still within its retention period or that is subject to ongoing legal holds should be retained, either in an active directory or in a searchable archive.
Be especially alert for data you may need to use again. For example, common data about the integral operations of your organization is often used in case after case. Also look for data that would be relevant to multiple types of litigation or commonly disputed issues.
With information that is likely to be used in subsequent matters, preserving associated work product such as coded review tags or data summaries in an accessible data repository will save you time and money each time you use it. You’ve already paid for these documents to be laboriously reviewed and coded; don’t throw that information away or leave it in a law firm’s hands just because one case has concluded. Instead, use it to build your institutional knowledge about your organization’s operations.
Crunch the Numbers With Ediscovery Metrics
There is a world of valuable analytical data to be gleaned from each ediscovery and regulatory compliance matter. If you haven’t been using it, now is the time to start.
Ask yourself — and your IT department — what key performance indicators you could meaningfully calculate and track to improve your ediscovery and overall information management. A word of caution: be sure to start with the KPIs you want to measure, not the data you may already have. You want to focus your analysis on those metrics that are helpful for your specific organization, situation, and stage of ediscovery or information governance maturity.
As a starting point, consider assessing how accurately you scoped ediscovery for this concluded matter. How did your forecast compare to reality in terms of your budget, timeline, and data volume? Collect the actual data from each resolved matter and compare it to your historical data either generally or by case type. You may be able to demonstrate a decrease in ediscovery spending from reused data that you’ve saved in a repository, as discussed above. Or you may notice a pattern in the percentage of relevant data returned after processing, demonstrating the cost-savings of a newly implemented technology.
Don’t limit your post-mortem analysis to the numbers, though. Take at least a moment to consider what you struggled with in the recently concluded case and what you could have done differently. Also ask what went well and what contributed to that success. Learning from each matter while it is still fresh in your mind is the fastest way to level up your approach to ediscovery.
Don’t squander the opportunity that presents itself when you resolve a matter. Make time for these steps and watch your ediscovery process — and your budget — improve.