The NZ E-Discovery Blog  Facilitating proportionate and efficient e-discovery

Myth 3 – The matter is too late for eDiscovery software

May 19th, 2021

Far too often parties turn their minds to the practical requirements of discovery far too late in the process, including if they are to use E-Discovery software.

It is not unusual for lawyers to consider eDiscovery only when they are about to (or want to) turn documents into an electronic format to comply with court requirements. This misses the true value of eDiscovery software, but more importantly adds unnecessary cost and burden.

Unfortunately, it is not uncommon for me to receive a request for assistance with discovery, that usually goes something like this –

How can I help ? – We need assistance with our discovery.

What was agreed in the discovery order? – Umm, we are to provide discovery electronically.

Did you work through the discovery checklist? – Yes, we are to provide discovery electronically.

Were there any practical requirements from the checklist discussed or agreed? – Yes, we are to provide discovery electronically. 

[Long sigh !!! – seeing the checklist and practical requirements have not been addressed – or even looked at them at all !]. 

OK, how much information do you have? – Not much, just a few files. I think they are PST files.

 We also agreed to manually list them all – can we just list each file?

[another long sigh] Do you realise how many documents may be in these ‘5 files’?

Yes 5 documents.

How do you want me to assist? – Can you take care of discovery? As we have them electronically – how do we get them to the other side? It should be simple and cheap – right?

And the deadline is tomorrow…

Btw, how much is all of this going to cost…

For conversations like these, the practical requirements of discovery have simply been considered far too late in the process.

It does not have to be this way !

The rationale is usually that this is the way that discovery has always been approached. The difference now of course is the proliferation of information, coupled with court requirements mandating more upfront work.

Earlier work saves you time and money

This work earlier in the discovery process can prevent the cost and burden spiraling out of control, with the time invested at the outset could save thousands down the track, not to mention lessening the burden for you and your firm.

Many of the mistakes made in the discovery process are made at an early stage, which can prove very costly later in the proceeding.

There are usually some ‘easy wins’ that can save you and your client considerable time and money. Sometimes these easy wins can come from some small incremental changes in your approach.

We can adapt when we have to

As we have seen over recent months with COVID-19, the legal profession can adapt how they work when they have to.

Ask yourself – how can we do this better !

When it comes to the discovery process, turning your mind to the practical discovery requirements earlier in the process will help achieve a more efficient and cost-effective discovery process. As mentioned previously, the benefit of eDiscovery software is far beyond simply the discovery process, starting with simply having all of your data in the one place – being crucial in how you manage the matter going forward.

I always stress the importance and long-term benefit of investing the time at the outset can have considerable cost savings down the track – even on the smallest of matters, spending an hour or so at the outset can provide considerable value as the matter progresses. This includes if eDiscovery software can assist your obligations to the court and your client.

If you turn your mind to the practical discovery requirements earlier, the use of eDiscovery software will never be considered far too late !



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