If you’re a football fan, you understand the importance of a playbook. Athletes learn the plays and practice them diligently before each game, so they can consistently and precisely execute them during the game. If the quarterback and team run the plays as designed, they maximize success and move the ball down the field to eventually score a touchdown. However, if a team member forgets their assignment on the play (e.g., a receiver runs the wrong route and the ball is intercepted), the result can mean disaster for the team and potentially cost them the game.
A playbook can ensure consistency and maximize success in discovery as well. Yet, many organizations don’t have a playbook to guide how they conduct discovery, while others may be outdated. Just as football teams must update their playbooks periodically as defenses learn to anticipate older plays, practitioners must also modernize their playbooks to address evolving discovery challenges.
Why You Need an eDiscovery Playbook
This is where you’re probably asking, “What’s in it for me?” and “Why do I want to invest the time to create an eDiscovery playbook when I’m already so busy?” The following reasons justify the time invested in creating a playbook.
Reduced Risk: A consistent and documented approach reduces the risk of errors that can lead to sanctions (e.g., failing to put custodians on litigation hold, preserve relevant data, suspend auto-delete programs, issue timely subpoenas to third parties with potentially relevant evidence). Not addressing these risks can negatively impact the outcome of a case.
Reduced Costs: The ability to document proven workflows and approaches (including everything from early data culling to technology assisted workflows during review) and to repeat the same processes in subsequent cases enables you to contain the runaway costs associated with discovery.
Greater Control: A playbook enables counsel to address discovery issues early, which enables them to control the discovery narrative by being well prepared for meet and confer conferences and discovery negotiations. Lack of proactive planning during the early case strategy phase can cause the scope and volume of eDiscovery to spiral out of control.
What better reasons could there be to have an updated eDiscovery playbook?
Benefits of an eDiscovery Playbook
Let’s get specific. An eDiscovery playbook defines a documented process that supports the objectives of reducing costs and risk, while maintaining greater control. Here are three of them:
Expedites Early Case Strategy Decisions: As discussed in the article, How to Resolve the ECA vs. EDA Confusion Once and For All, considerations about the case – including liability analysis, damage assessment, adversary investigation, and litigation budget forecasting – must be considered to decide your overall strategy for a case. Having a playbook that helps you get to those strategic decisions sooner makes it easier to implement your strategy successfully.
Team Collaboration and Consistency: One of the biggest reasons that discovery projects fail is that the team isn’t on the same page regarding how discovery should be conducted. An eDiscovery playbook helps onboard all members of the team — including in-house counsel, outside counsel, and vendors — and maintains consistency in their approach.
Defensible, Repeatable Process: Consistency and repeatability lead to defensibility, especially when there is documentation supporting your approach. An eDiscovery playbook establishes a defensible, repeatable process for discovery, reducing the risk of sanctions while keeping costs manageable.
Components of a Modern eDiscovery Playbook
What should a modern playbook include to keep you ahead in the discovery game? There are four high-level categories of components to consider:
Defined Workflows: eDiscovery is about workflows, so you need to define them within and across EDRM phases. This includes multiple workflows in relation to implementing and maintaining legal holds, to collecting data in a sound manner, to processing data for loading into a review platform (including exception handling), to workflows to support various types of reviews (e.g., responsiveness, privilege, issue, etc.), to performing quality control (QC) review for production.
Instructions: You also need a series of “how to” documents for tasks and processes, including opening a matter, identifying and interviewing custodians, issuing and maintaining legal holds, preserving chain of custody during collections, etc., to ensure consistency and repeatability.
Templates: A playbook should also provide templates for team members to follow to conduct various tasks and processes. Examples include custodian interview scripts, legal hold notices, ESI protocols, processing specifications, Rule 502(d) orders, QC specifications, and any other checklists needed. These templates — used in conjunction with the instructions that guide them — help ensure consistency and accuracy.
One thing that keeps an eDiscovery playbook modern is incorporation of innovative technologies and best practices to improve results and add efficiencies. These should be contemplated in the continued refinement and supplementation of these three components.
Using and Maintaining the eDiscovery Playbook
The success of an eDiscovery playbook depends on its implementation, which includes training, monitoring adherence, addressing potential issues, and periodic updates to incorporate evolving trends in the industry.
Training: Just like a football team, without training on how to apply the workflows and use the instructions and templates (and where to go for help when you need it), the playbook is aspirational, but not practical. Learn to use it — or lose it! Training should be targeted to in-house counsel, pertinent departments and stakeholders, outside counsel, and vendors.
Application: A big part of the success of an eDiscovery playbook is the ability to monitor progress and address issues as they arise. Even the best football teams learn to change the plays when their standard plays aren’t working. As an eDiscovery team, the ability to monitor your progress and adapt when issues arise is a key part of improving processes, as you can incorporate those adjustments.
Maintenance: Speaking of the future, building a process for periodic review and updates is essential. One key tool to that end is conducting a post-mortem after each matter to identify improvements, evaluate metrics, assess new technologies for efficacy, and apply any other lessons learned. If you’re standing still, you’re falling behind!
Conclusion
In football, winners have a great set of plays in their playbook which they continue to change to keep their opponents guessing and consistently execute better than the other team.
An effective modern eDiscovery playbook is one that has a proven set of “plays” (i.e., workflows, instructions, and templates) that the team knows well and has been regularly updated to address evolving challenges associated with discovery needs. For a legal team, winning means reduced risk and costs and greater control over the discovery process.