Anticipation. Carly Simon sang the song. Heinz Ketchup made it famous. It’s the most important thing you need to develop. What do I mean by that? Success in e-discovery relies on that old Boy Scout motto – be prepared. It’s easy to do it when you know what to be prepared about; but what about when you don’t? Work with me here…this will all make sense, I promise… In law, you succeed or fail not only based on your ability to build a strong case for your client, but also by anticipating the moves your adversaries will make, preferably before they make them (hence the ‘anticipation’ part), then responding accordingly. In IT, you succeed or fail not only based on your ability to manage current technology, but also by anticipating the future direction and growth of that technology – and how to protect against a range of caveats from minor outages to catastrophic failures. None of these processes is easy to do. It’s not something that can be taught – but it is something that can be developed with preparation, practice and experience. Einstein had it right, but I would temper his words a bit. Like it or not, where e-discovery is concerned, there’s no substitute for knowledge. If you don’t know the law, lead cases and/or the technology – and how they work together – you’re not going to succeed. It’s as simple as that. How will you make an educated guess without the education? One of the most common sayings in law is, “Never ask a question to which you do not already know the answer”. You’ve got to admit, that mantra cuts down on surprises. Technically, the context would be a deposition or trial, but why can’t we apply it to e-discovery as well? Let’s ask ourselves the questions instead of our ‘opponent’. If I’m a lawyer, suppose instead of waiting for my technology support to ask me questions, I asked myself, “What do the technology experts need to know about e-discovery law – and my requirements – that they don’t already know?” If I’m a technology expert, suppose instead of waiting for the attorneys to ask me questions, I asked myself, “What do the attorneys need to know about our ESI that would help them understand how our data is compiled and how it may be reproduced?” Do you think maybe you’d show up for the preliminary – and subsequent – meetings better prepared? Would you perhaps write a white paper to hand out at the meeting? Would there be less likelihood that crucial information exchange would slip through the cracks? Would each side be able to retire to their prospective ‘corners’ and have a better idea of what would be coming down the pike? And the most important question; would the template apply elsewhere and therefore be re-usable? Example. If I manage data systems and someone asks for ESI, I’d simply think about producing it for them. But what if the legal department supplied me with a summary of Zubulake I-V? Then, litigation or not, my entire thought process would change. I’d be thinking about accessibility, I’d be thinking about monitoring cost requirements; plus other things I wouldn’t likely have considered before, unless they were requested of me in advance. And, I’d be doing all of it simultaneously. I’d be anticipating instead of reacting, cutting both time and costs. Imagine that!
“Imagination is more important than knowledge.”
— Albert Einstein