According to conventional wisdom, the document discovery process begins with the receipt of a request to produce. While this sounds logical, it is no longer accurate. While true in the days when responding to requests to produce meant dealing with physically stored information (PSI), today's need to deal with electronically stored information (ESI) has changed this. The volume, dynamic and volatile nature, complexity and diversity of ESI have rendered PSI-based mindsets and approaches risky and ineffective. The dominating presence and nature of ESI requires new approaches. Consequently, the effort associated with responding to a production request begins no later than the filing of a complaint.¹ To be effective, however, the frameworks, plans, tools and resources necessary to perform this effort must be in place before a case is even filed. This situation dramatically shifts emphasis to what happens at the outset of a case and what a party needs to do in advance of a case to be ready.

A well-prepared discovery response plan will provide a party with the information it needs to effectively conduct PSI and ESI discovery within its organization. The benefits of developing and using a response plan include:

  • Making the collection effort the result of considered thinking, not a “fire drill”
  • Knowing where to look to gather potentially responsive ESI
  • Defining what activities need to be done
  • Defining when and in what sequence activities need to be done
  • Defining who will do what during the effort
  • Defining how the work needs to be accomplished
  • Defining procedures for implementing and enforcing the duty to preserve
  • Avoiding pitfalls such as starting too late and not adequately defining matter scope

These benefits produce significant value by minimizing disruptions to ongoing operations and allowing the work to be done right the first time. Functions within organizations do not typically staff to address discovery demands. This means with every new case, the affected functions must divert staff from their normal assignments to assist a case team’s discovery efforts. Having and utilizing a response plan minimizes this disruption and promotes not having to revisit areas due to a lack of upfront planning and forethought. Do it once, do it right.

The initial phases of the discovery process set the stage for all that follows in conducting PSI and ESI discovery. The results of the work conducted during these phases first prepare a party for the meet-and-confer phase of discovery, and then allows the ongoing response effort to be planned and appropriately staffed and managed all the way through collection, processing, review, production and ongoing use of the information at issue. How well all of this occurs, however, is a function of the initial readiness of a party to deal with litigation. This means, fundamentally, how well a party knows its own information environments and whether the party has a discovery response plan and the necessary resources in place to guide and efficiently implement discovery efforts. This, in turn, requires knowledge of the structure and culture of an organization, the nature of an organization’s information technology and records management systems and, finally, an understanding of how to perform discovery within an organization’s environment in a coherent, efficient, cost-effective and defensible manner.

Contextual awareness, proper planning and staffing, and efficient execution will drive a case team’s ability to perform. It is only by embracing a planned, unified, systematic approach to records management and discovery that a party will be able to achieve its discovery objectives in a way that also meets its needs for timeliness, quality and reasonable cost of performance.

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