It may seem a little early in the year for holiday season themes, but in our recent article Three Reasons Why This is Not Your Father’s Document Review Anymore, we discussed how document review workflows today are like snowflakes – no two workflows are alike. It certainly seems as though there are a virtually unlimited number of possible methodologies and workflows to support an organization’s potential discovery needs today.
In turn, many of those workflows can even be broken down into smaller workflows; for example, document collection, processing and review could be three workflows within an overall discovery process workflow and each could vary, depending on various factors. What factors can influence discovery workflows? Here are some of them:
- Numerous Use Cases: There are a large number of potential use cases where discovery workflows can be utilized. Each can often be unique, depending on the requirements of the use case and the goal(s) to be accomplished. Examples of use cases include:
- Producing ESI in Litigation
- Reviewing and Analyzing ESI Produced to You
- Conducting Internal Investigations
- Responding to Audits
- Responding to Regulatory Requests
- Conducting Internal Investigations
- Second Requests for Mergers and Acquisitions
- Responding to Data Subject Access Requests (DSARs) from Data Subjects
- Numerous Types of Disputes: Workflows also differ because of the type of dispute associated with discovery. The workflow associated with discovery in an employee discrimination dispute may differ significantly than from one in an intellectual property dispute or a product liability dispute, involving different potential custodians and sources of ESI.
- Different Types of Proceedings: The type of matter, the parties involved and the jurisdiction can influence discovery workflows as well. Examples include: workflows in a series of related matters regarding certain issues vs. workflows in a class-action lawsuit regarding those same issues, different deadlines between Federal courts and State courts for similar cases, etc.
- ESI Collection: The size and types of files in the ESI collection can influence workflows as well. For example, technology assisted review (TAR) may be suitable for some cases with a large document collection that is heavily text based, but may not be appropriate for cases with small collections or those that contain a larger percentage of files that may not be suitable for classification (e.g., number-intensive spreadsheets, pictures, videos, etc.).
You get the idea. The potential permutations are endless. So, how do you determine the workflow that’s right for your needs? Here are two recommendations:
- Treat the EDRM Model as a Framework, Not a Process Flow: The Electronic Discovery Reference Model (EDRM) offers a framework by which discovery should be conducted, but it’s not (nor was it ever intended to be) a process flow. For example, analysis could happen at any stage of many workflows, not just after collection. Be flexible as to when and how different phases could be conducted within the workflow.
- Leverage Proven Discovery Expertise: Remember the use case examples above? Even though each workflow is unique, there are experts who understand the benefits and drawbacks associated with approaches to support specific use cases. In turn, you understand the specific goals for your project. Work with experts who understand the parameters associated with factors like use cases, dispute types, proceeding types and data collections to leverage that expertise with your knowledge of the case to create a customized workflow that works for you. Not only that, but work with those experts to revisit and adjust periodically as needed through the lifecycle of the discovery process.
Since we’ve no place to go (because of remote work due to the pandemic, remember?), when it comes to customizing workflows for each discovery effort, let it snow, let it snow, let it snow!
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