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Introducing eDiscovery Concepts to Newbies (For Those New to the Area - Even if Experienced in Other Areas): Corporate Side

By Brian Balistreri posted 03-28-2023 18:58


Pleased enjoy this blog posted on behalf of the author, James MacGregor, Partner, FORCYD.

In today's digital age, the use of electronic data has become ubiquitous in business transactions and legal disputes. As a result, eDiscovery has emerged as a critical process to find, preserve, and analyse electronic data for use in legal proceedings. 

However, for those new to eDiscovery, it can be overwhelming, with complex legal and technical concepts that can be challenging to understand. While its easy to get fixated on the legal and technical hurdles to overcome during the process of eDiscovery, for those new to the industry, it’s also fundamental to consider the commercial implications of the process.

eDiscovery can be broadly defined as the process of identifying, collecting, preserving, processing, reviewing, and producing electronic data for use as evidence in legal proceedings. While undergoing this exercise, a business and/or legal team, should have front of mind the following key commercial considerations:

Business Interruption: The process of collecting and reviewing electronic data can be time-consuming and disruptive to business operations. It's essential to consider the impact of eDiscovery on business processes and identify ways to minimize any potential interruption, while also ensuring you gather all necessary evidence during the first attempt, so as to prevent the need to return and cause further interference.

Proactive Compliance vs. Reactive Support: Investing in a proactive compliance strategy to maintain proper data governance and management processes can help reduce the costs and complexity of eDiscovery. Having a robust data retention policy in place, training employees on data handling procedures, and implementing data security measures can help reduce the amount of data that needs to be collected and reviewed in the event of a dispute. Spending a little up-front, can save a load of expense after an event. 

Cost Comparisons: eDiscovery can be expensive, and it's essential to compare and measure costs across different law firms and eDiscovery providers to ensure good value for money. While cost is not the only factor to consider, it's essential to choose a provider that offers competitive pricing without compromising on quality. Low unit costs can be deceiving, because of the high complexity of eDiscovery pricing, thus be sure to measure apples against apples.  

Budget Management: eDiscovery can be a long and complex process, and the costs can quickly add up. It's essential to manage the budget throughout the lifecycle of the matter to minimize ongoing project costs. Having a clear understanding of the scope of the matter, the amount of data involved, and the timeline for completion can help you allocate resources efficiently and avoid unnecessary expenses. 

While these commercial considerations are often secondary, they should not be treated separately from the legal and technical aspects of eDiscovery. In fact, all three facets are all interrelated and should be considered together. For example, implementing a proactive compliance strategy can help the amount of data that needs to be reviewed in the event of a dispute, which can ultimately reduce costs, reduce legal risk, and allow for greater technical efficiencies.

In conclusion, eDiscovery is a complex process that involves legal, technical, and commercial considerations. While it's essential to understand the legal and technical aspects of the process, it's equally important to consider the commercial implications. Business interruption, proactive compliance, cost comparisons, and budget management are just some of the key commercial considerations to bear in mind. By considering these factors, you can ensure that the eDiscovery process is conducted efficiently and effectively, with minimal disruption to your business operations and at a reasonable cost.