Ralph Keeney and Detlof von Winterfeldt published a paper on analyzing experts and their judgment within complex subject matter. One of the key takeaways from their findings is expert assessments complement the method/analysis. They explain that true experts may rely on implicit judgment initially, but can use explicit judgment to further “break an implicit thought process into smaller parts and apply logic.” Therefore, “the potential value added to an analysis of a complex problem by explicit expert assessment should be substantial” (Keeney and Winterfeldt 1989).
Among this vast spectrum of players, there are some true experts in the eDiscovery field. These folks are focused on proper collaboration with the client, drafting a defensible path to managing the discovery, and aligning themselves with the ABA rules of conduct to “zealously protect and pursue a client’s legitimate interests.” These are the folks that understand not only the tools of the trade from a technological perspective, but also the strategy involved from a quasi-legal perceptive aimed at uncovering the truth. These are the folks that ask to review the material first, even if the initial directive is to “process and load to review,” because sometimes there may be other ways to help. Yes, the “truth is out there,” but sometimes it isn’t found in a nicely structured statement of work, documenting the same old waterfall processes attached to GB counts and per page fees.
Bottom Line: eDiscovery Strategists provide a true solution based approach that is tailored to the subject matter, and not a canned discovery workflow.
As an example, we were recently were looped into a matter, although late in the game, where a very technical forensic team was hired to image every device under the sun. This was the best course of action based on the litigation; although, as your expert would advise you, this is not always the best path. Forensic imaging is costly and is not always the most efficient way to collect data for every case.
Nonetheless, the client ended up with many different images, and was then presented a very expensive proposal to have all of the imaged data follow the “normal” eDiscovery workflow leading to de-NISTing, deduplication, culling/processing, and then delivering for review. After gathering numerous “good to know” criteria from our client, we set down a path that didn’t include a massive waterfall processing proposal. Instead, we crafted a strategy that boiled down to good old fashion hands-on investigating without wasting many days and thousands of dollars processing data. What we were able to determine within 5 hours of digging led to a small data export, a signed declaration of our findings, and significant savings.
FYI: My mother, a 30 year educator, took an online class for Microsoft Word, but I’m not inclined to have her redline and track changes on the latest ESI Order I drafted. She learned how to use the tool, but still lacks the experience to apply explicit or implicit judgment to the subject matter.