eDiscovery has become a well-established industry, having been used in litigation for nearly two decades now. And whether we want to admit it or not, nearly every case filed has a potential eDiscovery element. So, what do you do if you’re not a Certified e-Discovery Specialist (CEDS) or if this is all a new language for your organization, lawyers or IT department? Hint: Take a deep breath and start identifying people who can help, processes that can be easily implemented and technology that ties it all together.
The knowledge and methods surrounding eDiscovery have grown tremendously through the years, yet many companies and law firms still treat eDiscovery like a fire drill. Running eDiscovery as a reactionary process leads to disruption of the business, increased risks and higher costs. Plus, when it’s not planned for in advance, eDiscovery will likely be handled differently by different people, for each individual matter. That is, the wheel is continually reinvented – the opposite of efficiency.
The good news is that eDiscovery doesn’t have to be that way. With just a little planning, it can be become a standardized, efficient business process. All you need are the right people, the proper workflows and top-of-the-line technology to support it.
The right people…
Contact a reputable eDiscovery company or consultant or request some guidance from your trusted outside counsel. If you are outside counsel, don’t sweat it… there are lots of resources to tap that will help you accomplish your goals – but remember, don’t agree to any deadlines with the opposing side or the court without having some guidance from someone who has done this before – preferably a few thousand times. The number of custodians (i.e., people or things that hold potentially responsive data), amount of data per custodian, ‘other’ sources where that data may reside, electronically stored information (ESI) protocols and other considerations can all become whammies if you’re ‘faking it till you make it.’ We frequently get on calls to help people navigate the eDiscovery rapids. But, just like whitewater, you wouldn’t embark without your guide – and the proper raft.
…combined with the right processes
By creating a detailed, written plan that outlines the steps to take when facing litigation, attorneys can ensure that they follow a consistent procedure for every case. An orderly plan will significantly reduce the stress and chaos associated with the ad hoc approach to eDiscovery. It will also designate specific employees to oversee the process, which will provide clear leadership and consistency for each matter.
Attorney document review is traditionally the most expensive and time-consuming element of eDiscovery, and it can be compounded by how the review is handled. When there is a large amount to review and/or the deadline is coming up fast, it’s common practice to use contract attorneys to assist with the review. However, many times, this decision is made too late.
One of the best ways to increase the efficiency and accuracy and decrease the cost of the attorney document review process is to develop a review standard across all legal matters. Determine what level of case or what number of documents will warrant additional help, and then have a designated team of the same review attorneys – either within your company or outsourced – handle this process on a regular basis.
Doing this will exponentially reduce the time and money it normally takes to find contract attorneys, perform conflict checks, train them on the case and get the review going. In a rush situation, the costs can be compounded. Using the same team of review attorneys also builds institutional knowledge for clients who are involved in frequent litigation, which further improves accuracy and efficiency.
Another way to streamline processes is to recycle processed data and both technical and attorney work product. When the same files and custodians are involved in multiple legal matters, the traditional approach has been to perform separate collections for each case and have different reviews of the same material. Instead, develop a data repository that allows you to reuse relevant work product across different matters – saving a great deal of time and money and simultaneously making the eDiscovery process smoother and more accurate.
…and the right technology tools
If you’re past the point of “ESI for beginners” and are looking to streamline the eDiscovery process, consider using applications that manage legal holds, data preservation, collections, processing and searching – all in one place. Having a single platform to handle these tasks will help automate processes, increase efficiency and cut costs while ensuring you meet necessary compliance obligations. Look for a solution that allows you to easily move your collected and culled data into the review platform of your choice, ensuring you remain in control of your data.
Technology assisted review (TAR) and advanced data analytics tools can be great assets in the eDiscovery process, as they help to dramatically reduce the time and effort required to review data. It is important, however, to understand when TAR may not be the best solution. Using TAR on some types of data, such as spreadsheets, can actually make the review process more difficult and less accurate. By understanding what types of data you’ll typically be handling – whether it’s documents and emails or primarily spreadsheets – you can decide when it makes sense to use TAR and when it doesn’t.
By combining the right tech tools with expert workflows, and backing it all with experienced personnel, eDiscovery can become a regular practice of business. Transforming the chaotic, spur-of-the-moment approach to a consistent, efficient method will result in less confusion and more order for each legal matter.
