If you spend any time in eDiscovery, you know we use the word defensible a lot. And it’s for good reason. Everything we do has to stand up to scrutiny, whether that’s from opposing counsel, the court, or stakeholders asking, “why did we do it this way?”

But defensibility isn’t as simple as following a fixed checklist from start to finish. Every matter has its own quirks. Data can show up differently than expected, scopes creep, and priorities may change halfway through, especially when you’re talking about multi-year litigation. All of these scenarios require your legal workflows to have a bit of flexibility.

That’s easier said than done, because now you’re balancing two things that don’t always sit comfortably together. You need processes that are consistent and repeatable while also being able to adapt when necessary. And the only way that balance actually works is through a combination of strong documentation, experienced teams, and clear, ongoing communication.

Defensibility Starts with Documentation

If you want defensibility, you need documentation. Plain and simple. And it can’t be something that happens at the end of a project or as a post-action exercise. It really needs to be part of the process from the beginning and carried through the entire matter.

That includes your non-negotiables like legal hold implementation, data preservation, and chain of custody. Those are just baseline expectations across the board. But it also includes documenting the decisions you’re making throughout the life of the project.

In the beginning, that might look like capturing your initial assumptions around scope, timing, and cost, and identifying who the decision-makers are going to be. As the matter progresses, it becomes more about making sure that any time those assumptions change, you’re documenting what changed, what prompted it, and how you adjusted the workflow in response.

It doesn’t need to be overly complicated. You just need enough information to go back later, understand the decisions that were made, and walk back through the process step by step if you need to. At the end of the day, the goal is to have a clear, consistent record of how the matter was handled from beginning to end.

Flexibility Based on Experience

As a matter progresses, you’re not just documenting what’s changing. Some of those changes are going to impact what happens next.

For example, you might go through a collection and find that the data doesn’t fully support the original scope, or you might get into culling and realize that your filtering strategy isn’t performing the way you expected. Either way, this is where you need controlled flexibility and the experience to make it work.

Your project managers understand what’s standard, what’s reasonable, and when something is outside of the norm. More importantly, they know how to guide those changes in a way that keeps the matter moving efficiently.

That might mean narrowing or expanding scope based on what the collection actually shows. It might mean revisiting culling decisions, adjusting timelines, or rethinking how review should be prioritized. Whatever the change is, the goal isn’t to abandon the process. It’s to make thoughtful adjustments that still align with your objectives and the realities of the matter.

This is also why it’s important to build in decision points throughout the workflow. You need moments where the team can stop, assess what’s been learned, and decide whether the original plan still makes sense or whether it needs to be refined before moving forward.

Sometimes everything lines up and you keep going. Sometimes it doesn’t, and that’s fine too. The point is that the process is structured enough to support those decisions, and the team has the experience to make them well.

Communication Is What Keeps Everything Aligned

Even with strong documentation and experienced teams in place, things can still go sideways if communication isn’t handled well.

Because at that point, it’s not just about what’s happening in the process. It’s about whether everyone understands what’s happening, when they understand it, and how quickly they can respond to it.

You need to keep communication consistent from the start and with a clear path to escalation. Think about it in terms of status reporting:

  • Where are you against the timeline?
  • Are you tracking to the original cost assumptions?
  • Have any of those assumptions changed now that you’re working with the data?
  • Who needs to be informed of these changes?

And if there’s a blip in the process, that needs to be communicated as soon as it’s identified, not after it’s been solved (or beyond repair). This way, no one is caught off guard, and decisions can be made collaboratively as things evolve.

What This Looks Like in Practice

At the end of the day, change is going to happen. The question is whether your process can handle it without creating confusion or risk.

When you have the right documentation in place, a team that knows how to guide those decisions, and communication that keeps everyone aligned, those changes become manageable. You’re not scrambling to react. You’re making informed decisions and moving forward with a clear understanding of what that means.

That’s really what makes a process defensible in practice.

Rebecca Cameron

Author

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Rebecca brings over 15 years of experience in the eDiscovery field to TCDI, where she serves as Director, Client Services. Her expertise spans full-lifecycle project management for matters including scoping, collections, processing, review support, privilege logging and production delivery.

A Lean Six Sigma Yellow Belt and certified Digital Forensics Specialist, Rebecca combines process discipline with technical insight to deliver reliable, defensible outcomes. She partners closely with clients and internal teams to design and manage workflows that align legal strategy with operational execution.

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