Can you Pass the eDiscovery Active Management Test?

No? Well, you might want to prepare yourself for sanctions. In a recent eDiscovery presentation,  John Jessen,  a chairman of the Sedona Conference executive committee,  hit on the importance of Active Management. Mr. Jessen expressed that  there is a growing expectation that attorneys establish a comprehensive and defensible eDiscovery plan right from the start of a matter. Gone are the days where attorneys may make up eDiscovery management as they go along. Instead, as has been recognized in many of the leading eDiscovery cases, including the Zubulake and Pension Committee decisions, judges are stressing the importance of comprehensive planning. As one judge recently put it:

“Without a discovery plan that incorporates a comprehensive and defensible electronic discovery preservation and processing protocol right from the start—and then active management of the timelines and milestones associated with the plan—the perception of negligence or willful destruction is almost unavoidable”

With the growing consensus among decision makers that the absence of Active Management is per se negligent, Active Management is no longer just an option—it’s a requirement. So how does one pass the Active Management test? While perfection is not required, judges are expecting eDiscvoery models with a reasonable plan for data selection, collection, review and production. A successful model needs to have built in checks and balances to create some likelihood that a good data set will be collected and that a defensible document review protocol will be established. Any defensible eDiscovery model must also memorialize all important project decisions so that if the model is challenged, there is an ability to defend strategic choices made by counsel.

The bottom line is that a practitioner will be much better protected against sanctions with a defensible eDiscovery model and active management to guard against error. Succesful Active Management means having oversight over the eDiscovery process such that potential issues are easily identified and resolved. To find out more information about a comprehensive eDiscovery plan, check out Daticon’s eDiscovery methodology:

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