The Case for Pausing in E-Discovery

What type of mindset allows for successful resolution of the complexities faced by IT and legal teams in e-discovery? At the risk of seeming too cheeky or simplistic, the short answer is a clear mind. But how do you get there? Do the opposite of what a busy workday calls for—do not tackle what's in front you right now. Pause. Particularly when things are busy.

It sounds simple, yet it's challenging to do consistently and well. The practice of pausing is not a new one; many have written about this over the years. There are many ways to incorporate pausing and experts who offer support to do it. The key to the pause is to mentally step back and remain present. It remains an increasingly important practice in e-discovery as data volumes grow and the speed of work continues to ramp up.

In a webinar earlier this year, Mark Thorogood, Ian Balom, Stan Pierson, John Rubens, and Ellen Blanchard discussed ways for IT and legal teams to overcome obstacles in e-discovery. They provided practical strategies for tackling e-discovery challenges that come up frequently.

Here's how some of the webinar's key take-aways can be implemented with a practice of pausing.

Maintain perspective: In reflecting on key takeaways of the panel, Mark Thorogood noted: “[B]efore running down the road, take a step back and ask yourself what you are you really trying to achieve and what is the best way to go about producing the desired results. Becoming too focused too soon often results in the premature foreclosure of options.” Building in pauses to reflect will help maintain an appropriate and open perspective throughout the e-discovery lifecycle.

Understand where data and knowledge about data reside: Define the individual skills and subject matter knowledge of each member of the IT team. Confirm the IT team's structure and how technology is used within the organization to help streamline information identification and collection. Maintain active data maps. Systems often change; maintaining an active data map can help keep discovery costs down. When this understanding is established and documentation created, it can often get lost as discovery proceeds. Here's where a practice of pausing will help keep information gathered in the early stages of discovery top of mind throughout the matter, particularly if additional collections are required later in the discovery process and a more holistic inquiry is required.

Cultivate effective communication and collaboration between IT and legal teams: Collaboration between IT and legal teams is increasingly important as technology and data become more complex and attorneys must speak with courts and opposing parties about technology use in matters, particularly predictive coding and AI. Consider who is best suited to have initial and ongoing conversations.

Maintain and understand standard questions regarding expected data formats and access: Certificates, passwords, and authorizations may be required to access data. New data formats, such as those presented by Slack, may require further discussion regarding how to address them in discovery matters. Cultivate a practice of considering whose expertise and feedback may be needed to keep answers to these questions updated.

Building pauses into work can equip us to maintain the ever-important perspective that navigating e-discovery well requires. It can also help us to later form and thoughtfully ask high level questions, such as: what more need we know? Who can connect to make this process more efficient? How can this process be simplified? Are there others who might need to know about this next step? What may be missing from the information collected?

Incorporate brief pauses into work. Then, jump in and apply these insightful practices to overcome challenges in e-discovery.

Helen Stocklin-Enright is the development manager for Perkins Coie's E-Discovery Services & Strategy practice. She manages implementation of technology and operational initiatives within ESS, focusing on the strategic application of technology to conserve costs and enhance efficiencies. Thanks to Ian Balom and Mark Thorogood for contributions to this article.