Tess Blair, Tara Lawler, and William Childress: Client Data and Planning for Discovery Before Litigation Begins

Extract from Tess Blair, Tara Lawler, and William Childress’s article “Client Data and Planning for Discovery Before Litigation Begins”

In this installment of our continuing series on e-discovery basics, we address the importance of developing a thorough understanding of client data and planning for discovery before litigation starts. In our last article, we discussed how an Information Governance program presents an opportunity for organizations to bring reasonableness to the discovery process, and we identified several practical components that should be incorporated into a records-retention program.

A common thread between Information Governance and the core phases of e-discovery—identification, preservation and collection of data—is the necessity for eData attorneys to develop a full understanding of the locations and sources of client data. Why is this important?  There are three good reasons.

First, eData attorneys cannot help clients meet their discovery obligations to preserve, collect, and produce information if they have an incomplete, outdated, or fragmented understanding of client data. Considering the duty of competence imposed on attorneys, failure to understand a client’s evolving data landscape or to dig into complex potential data sources will not be easily forgiven by courts. In most states, attorneys have an express duty to stay abreast of relevant changes in technology. Being associated with a court opinion about shortcomings in professional competency is not a good way to build trust with clients.

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