This blog presents the second of five steps, which provide the framework for achieving a defensible process in managing digital information as evidence. These five steps are focusing on the truly legal services that lawyers perform in order to move from here to there in conducting discovery in a digital world.

The first step, discussed in the earlier blog,  is to identify the rules that govern. While many lawyers know they should conduct updates on legal rules for any new case or investigation, they often overlook the constant evolution in technology, and the changes in the rules by which technology systems operate. As a result, legally significant risks arise when lawyers fail to focus on both the legal and technology rules.

2. Assemble the resources and tools required. The second step is to assemble all of the resources and tools required for the lawyer and discovery team to do their work. A complicated business process is no different than any other assembly activity – the craftsman does not begin the work until all of the tools and resources are collected, confirmed to be in good working order, and available for use.

For electronic discovery, being a good lawyer requires having at hand the resources that enable responsible and efficient due diligence, the collection and organization of all facts and information, and the forms, model documents, and templates into which the facts and information can be assembled and produced as legal work product.

While this may seem obvious to many lawyers, particularly those who have created and retained extensive form files on which they rely, the complexity of electronic discovery requires additional tools and resources in order to achieve efficiency and enable zealous advocacy. The focus is on the tools and resources the lawyer requires; this inventory is entirely different than the inventory of technology products, systems, and services that may be relied upon to achieve greater efficiency in the actual processing, analysis, and production of ESI in litigation.

For example, here is a sample inventory of the tools we teach lawyers and IT professionals to use through our courses at the Ritter Academy; as new courses and lessons are published, of course, new tools and resources will also be made available. In reviewing this list, ask yourself:

• How many of these tools have you developed?
• Instead of a tool being available, how often do you rely on your practical experience, judgment, and instincts to do the right thing under fire?
• In the absence of any of these tools or resources, how do you make sure that they are current, up-to-date, and not creating exposure for you or your client?

This is a sample inventory:

• Checklist for ESI Preservation Duties—Initial Interview
• Checklist of Potential Actions to Suspend Destruction
• Preservation Instructions Letter—Client-Facing
• Preservation Instructions Letter—Adverse-Facing
• Model Keyword Spreadsheet (for identifying and organizing keywords and phrases)
• Checklist for Identifying the Triggering Event (and Duty of Preservation)
• Process Plan for Initial Due Diligence on IT Systems
• Model Deposition of an E-Mail Custodian

By assembling the resources and tools as a new case begins, the lawyer and discovery team are also confirming that there are no gaps, missing items, or antiquated or outdated resources. Just like surgery on a living patient, the middle of electronic discovery is no place to stop your work and run to a “legal” hardware store to buy the missing tools. It is even less appropriate to find yourself required to assemble a tool or resource while in the middle of the discovery process.

As a practical matter, pulling together all the tools and resources also enables a discovery team to focus on how each tool and resource will be used in the discovery process.

• When will the tool be used?
• Who will be using the tool?
• For how long will he tool be used?
• What is the work product that will result from the use of these tools or resources?
• What are the costs to use the tools?
• What are the labor costs or other expenses that will be incurred?
• How will these tools or resources save money, when compared to conducting discovery without these tools available?

By collecting and assembling the tools, the lawyer and discovery team are actually taking important steps toward developing control over the process that lies ahead. This control is an essential ingredient in effective project management-something virtually every corporate client is now demanding from their legal teams commissioned to conduct electronic discovery.

Here is a suggestion that works: on a blackboard, whiteboard . . . or a mindmap, draw your image of the e-discovery process, identifying each phase of legal work (not just data processing), the kind of work product produced in each phase of work, and the tools and resources you should have. For each tool, jot down when the last time is that you updated the work, or had an associate research the scope of the tool to assure it is current. In just a few minutes, you will begin to see the value of this step in the process.

When you begin to visualize the process, and see what tools you do—and do not—have, think about what your next client would think if they could see the same picture. Wouldn’t they want to know your tools are assembled, ready, and complete? Is there any better way to reduce your own risk for omissions that could result in sanctions or adverse instructions than making sure you are ready and prepared?

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Enrolled subscribers in the Ritter Academy can download with each course a full portfolio of annotated tools and resources to do their job. Enroll now and accelerate ahead in your ability to have available the tools you need for conducting defensible e-discovery.