The ‘preserve broadly, collect narrowly’ eDiscovery approach has a hidden cost. It delays your ‘time to truth’ by a year in most cases. It robs counsel of key facts and evidence hidden in custodial in-place holds. M365, Google and other cloud repositories now have search and basic eDiscovery features to validate interviews.

How many times have reviewers stumbled onto conflicting documents, reports or messages while trying to beat the looming production deadline? Why agree to a discovery plan without knowing what could come back to bite you?

A few possible historical causes:

  • Very few civil matters go to trial (1-5% estimated)
  • Most settle or are dismissed in the first year before or during discovery
  • The traditional approach had corporate counsel initiating and managing many cases that were passed to retained counsel for motion, discovery and trial practice
  • Discovery WAS the most costly phase of litigation (68%)
  • ESI was inaccessible without costly collections, processing and hosting
  • A relative scarcity of technical investigative, search and analysis skills in the market
  • Tendency to apply relatively rigorous discovery requirements to early data analysis

These and other factors have made many counsel hesitate to ask for the time or resources to get ‘hands on data’ after a demand letter or service arrives. They will conduct fast interviews and may do impromptu manual collections before scoping the hold. Many times that is sufficient to resolve potential litigation. Far too often custodian’s recollections are biased or selective. We now have the tools to efficiently find and preview critical communications and other ESI without undue cost or delay.

The goal of corporate legal is to minimize the risk and cost associated with business in a regulated and adversarial legal environment. No one wants to go to trial. No one wants to do formal discovery. The highest ROI approach that I have seen is to speed ‘time to truth’ to resolve matters as early as possible.

Greg Buckles wants your feedback, questions or project inquiries at Book a free 15 minute ‘Good Karma’ call if he has availability. He solves problems and creates eDiscovery solutions for enterprise and law firm clients.

Greg’s blog perspectives are personal opinions and should not be interpreted as a professional judgment or advice. Greg is no longer an investigative journalist and all perspectives are based on best public information. Blog content is neither approved nor reviewed by any providers prior to being published. Do you want to share your own perspective? Greg is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. Outside blogs will clearly indicate the author, company and any relevant affiliations. 

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