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The Most Important eDiscovery Phase is the One That Drives All the Other Phases

Written by Doug Austin, Editor of eDiscovery Today

Pop quiz, which EDRM phase is the most important (not counting Information Governance, which is an entire discipline unto itself)?

Is it Preservation? Review? Production?

No, the most important EDRM phase is the one that drives all the other phases – Presentation!

Why is Presentation the most important EDRM phase? Because it is the one that all the other phases are designed to support. Presentation is reason that all the other eDiscovery phases exist, yet it’s the one that’s probably discussed least on eDiscovery blogs.

You Play to Win the Game!

When he was the head coach of the New York Jets in 2002, Herm Edwards was asked (by a reporter after a game that the Jets lost, taking them to 2-5 on the season) whether he had to talk to his team about not giving up on the season. His response was this:

“This is what’s great about sports. YOU PLAY TO WIN THE GAME!” – Edwards responded emphatically.

How did the Jets wind up the season? You have to wait to the conclusion of this blog to find out!

Presentation is the “game” to which all the other EDRM phases lead up. That’s where the evidence that is identified, preserved, collected, processed, analyzed, reviewed, and produced is used – to win or lose the case (or at least obtain a favorable settlement). The other phases are similar to “practice”, where you’re preparing your team to win.

Just like in sports, you can’t win the game before it’s played or the case before it’s tried, but you can certainly lose it beforehand with poor “practice” or execution of those earlier phases. Then, with the right preparation and understanding of how to maximize the value of that evidence, you can execute on “game day” to use that evidence to accomplish the goal of the presentation event (whether it’s to impeach a witness in a deposition, make a point with the jury, or any other goal associated with presentation of evidence).

Looking at the EDRM Model Backwards

When it comes to success in the Presentation phase, you can’t wait to start thinking about it until Production is completed, or even close to that. Succeeding in the Presentation phase starts by thinking about it all the way back at the beginning of the case.

For years in presentations, I’ve taken a version of the EDRM model graphic and flipped it so that Presentation is the first phase on the left – because you should be thinking about it first. When planning for your eDiscovery project, it’s often best to work backward and start with the goals to be accomplished for the end phases and use that to guide your work at the beginning of the process.

So, for the ESI that you plan to present, you’ll need to identify that ESI (and determine whether it’s in your possession or whether you need to request it from another party), and you’ll need to determine what ESI you need to preserve and collect to support the objectives of the eventual Presentation phase. You’ll also need to figure out what analysis you need to perform, what important information to consider during review, and what evidence to include in production so it can be used in the Presentation phase where it’s needed the most!

Leveraging Technology and Presentation Skills to Win

Once you get to the Presentation phase itself, you need to capitalize on the “practice” that has led up to this point, and it’s important to leverage technology to do that. The ability to manage depositions, link to exhibits, create video clips of key testimony, and create powerful presentations using the evidence that has been accumulated is the payoff. The ability to collaborate with the rest of the trial team is key to ensuring that all these tasks are managed in a way that keeps all important team members in the loop. Presentation is a team sport!

Conclusion

In eDiscovery blogs, we talk a lot about many of the other EDRM phases, but we rarely talk about Preservation – even though it’s the phase that drives the activity for all the other phases. It’s important to not make critical mistakes leading up to Preservation to give your team a chance to win and then it’s just as important to execute well during the Presentation phase itself. That’s how you win – in football and in litigation!

As for the 2002 Jets, they finished 7-2 to win the AFC East that year and routed a Peyton Manning led Indianapolis Colts team 41-0 in the first round of the playoffs before losing to the eventual AFC champions, the Oakland Raiders. That’s playing to win the game!

Learn how IPRO can help you leverage the right technology for each phase of the EDRM model, including preservation of evidence and the most sophisticated trial management software on the market.

And for more educational topics from me related to eDiscovery, cybersecurity and data privacy, feel free to follow my blog, eDiscovery Today!