Peer to Peer Magazine

62 PEER TO PEER: THE QUARTERLY MAGAZINE OF ILTA | WINTER 2016 FEATURES Being Mindful of Your P's and Q's in E-Discovery Improper Preservation: There is no greater area of confusion than preservation and legal holds. Aer decades of case law and precedents, people are still being sanctioned for violating preservation requests. Why should legal hold management be so notoriously complex? We all know ESI must be preserved as soon as litigation is anticipated, but then we fail at establishing rock-solid policies for document retention and destruction. System 2 thinking could help us build more repeatable preservation processes and mitigate the risk of sanctions. Undercollection or Overcollection of ESI: Collection and preservation go hand-in-hand, but, even if we have perfect litigation hold strategies and information governance strategies, we could still fail in collection efforts. We tend to use System 1 thinking when performing remote or self-collections in order to save costs or time. System 2 thinking would automatically enforce more human quality control procedures or second opinions in this phase, but we overly rely on technology to catch all our mistakes. Inefficient Review: According to Discovia, inefficient review is the "number one cost multiplier, especially in the case of overcollection and duplicate documents." They recommend beer organization of ESI, more efficient coding forms and the right soware with people trained to use it. But how many of us still rely on System 1 keyword searching as a start and never advance to other recommended alternatives (email threading, clustering or categorization in tandem with technology-assisted review (TAR))? We are still afraid of the "black box" known as TAR, even with judicial precedents prodding us strongly to change course. We love the comfortable past and are afraid of the future. If all of us employ System 2 thinking in this phase, review will cease commanding 70 cents of every e-discovery dollar spent (according to many current estimates). 2 3 4 Destroying Vendor Relationships: It doesn't maer if law firms use an outsourced vendor or in-house resources, the key is continuous harmony with whoever manages and processes your data. This relationship affects the end client by promoting lower cost efficiencies and higher defensibility metrics. System 2 thinking can help firms reflect on this relationship and act with a more conscious intent. It can also help enhance a firm's empathy to understand situations from their vendor's perspective (and vice versa). This enhanced understanding leads to beer negotiated outcomes for time and cost disagreements. Ask other people in your industry what mistakes they make. Read everything you can about what goes wrong in our industry, not just what goes right. Victories last a day, but mistakes hang around forever (I will gladly take credit for that impromptu bumper sticker). We beat ourselves up for mistakes even aer we resolve them. I blame System 1 thinking for these mistakes and for never allowing us to learn from them. Ralph Losey, an e-discovery expert who has wrien over two million words on this subject, notes one of his pet peeves: "Never put yourself in a time bind — be proactive." System 1 thinking would tell us to wait until a request for production (RFP) is received before beginning any review or analysis. System 2 thinking would tell us to look at documents before the RFP, at intake, as part of early case assessment (ECA). Even true ECA is a proud offspring of System 2 thinking because, according to Fogel, it forces us to slow down and "think about thinking while thinking." Mindful To Hit Your Target Being mindful in e-discovery will help you realize that not all projects are the same, even if they appear similar. How many times during the day do you use automatic, rapid thinking? What would happen if you became aware of this and tried to replace this with more reflective processes that are deliberate, slow and conscientious? Be mindful of your p's and q's, and you'll hit your target time and time again. P2P 5 System 2 thinking could help us build more repeatable preservation processes and mitigate the risk of sanctions.

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