I look forward to reading Craig Ball's "Ball in Your Court" article in Law Technology News each month because they are thought provoking. To futher Mr. Ball's article in July's LTN, "Fields of Gold- Part 2 of our 'how to' guide to effective, defensible e-discovery searches" (http://www.lawtechnews.com/r5/showkiosk.asp?listing_id=3259581&category_id=27902), what must you do to prove to a court of law the efficiency of a search? How does one go about proving the negative (i.e., providing proof that some piece of evidence doesn't exist)? The short answer is to set up a process that is consistent and repeatable across all custodians, data stores and increments of data. That process must provide a tracking mechanism not only for the steps taken and results, but also should include the reason(s) for the decisions. Project management is key and incorporated as a matter of course by most experienced litigation support professionals.

Another way to approach the challenge is to outline a series of questions that goes back to old journalism techniques (i.e., the five W's- who, what, when where, why). The big question is, of course, "How?" with the triple constraints of scope, time, and money.

• Who - Which custodians should be reviewed; who will perform the searches; who should make the decisions for the review or for each phase.
• What - Is all the data necessary for each custodian; what data can be included and more importantly excluded; did the parties agree to the "what" in the meet and confer; what is the workflow and review methodology (e.g., cull and review a subset of data for production vs. cull and produce results outside of non-responsive/privilege search with only a sampling of the results); what are the risks; what are the core requirements for a review application to meet the needs of the review; what is the cost of different review approaches and does that meet the client's budget weighed against the risks.
• When - What are the deadlines for each phase of the litigation cycle (e.g., meet and confer, start and cut-off of discovery, deposition, briefing & hearing schedules, trial); what are the optimal and likely schedules for the harvesting, review, and productions given resources allocated to each phase.
• Where - Where will the data be staged and reviewed (local, distributed, national/global review).
• Why - For each of the above, reasons should be included (e.g., why custodians a, b, c; why certain data was included/excluded, why there is a deadline (court imposed or otherwise); why location X vs Y).
• How - How does each phase and milestone get accomplished. Usually it involves human (personnel, vendors, 3rd parties) and not-so-human resources (hardware, software, workflow & processes). One of the biggest omissions I've seen is a lack of a communications process to ensure key stakeholders, clients, and team members are to be kept informed. How will that be done (e.g., meetings, email, more formal document). This then turns into a loop of who will provide what and when.

Using this technique as a launch pad for planning and decision-making during each phase will assist in being prepared for risks that are unknown unknowns.

Monica Paskvan, PMP