It can be very easy to be so involved with the eDiscovery process on a daily basis that bigger-picture questions are pushed to the bottom of the list. This can be anything from asking whether the tool you’re currently using is actually the best fit for the type and number of cases you’re handling, how eDiscovery costs are being handled within the firm, or whether the people performing eDiscovery are well trained. Gaps in any of these areas can mean a process built on a cracked foundation.
Fortunately, there are ways to step back, take stock, and shore up your eDiscovery footing. As in many areas of life, eDiscovery outcomes are based mainly on the amount and quality of preparation. In the end, the execution of the eDiscovery project is only a small portion of what will determine overall success.
There are five principal areas in which preparation can pay off in spades: templates, platform expertise, interview questionnaires, search terms, and artificial intelligence. Two of those are covered in this blog; for the others and a deeper dive into those two, you can watch the free on-demand webinar 5 Things To Do EARLY to Reduce Your eDiscovery (or Expert) Costs By Half.
Artificial Intelligence
We’ve all embraced artificial intelligence in our everyday computing lives, where we (mostly) understand the benefits and limitations. It’s something we’re already using and essentially have to use to interact with the multiple systems we utilize daily. It has seen much better adoption in the eDiscovery field and is a critical component of a successful eDiscovery project.
A more fluent understanding of how AI’s benefits and limitations apply to eDiscovery will help build a solid foundation. For instance, the technique used for “more like this” in an internal investigation is different than “more like this” for a document review in preparation for production. The technology is the same, but the workflow is likely different based on the goal. This begins with a core understanding of how your artificial intelligence tools work. It translates to placing them into the specific workflow needed for your desired outcome. The benefit is significant time savings and far more accurate results.
Even though the AI technology is the same, the data being input may be different. Having access to more than one analytics tool is a plus in comparing tool efficacy. It’s good to remember that AI is far more than just predictive coding; there are many other features, such as clustering, find similar, email threading, and near dupe.
Knowing exactly what type of AI to apply to meet your end goal and not having to experiment is a substantial time saver. Of course, seeking the advice of experts with a new kind of data or a new goal in mind is always beneficial.
Custodial Interviews
Information technology and the personnel handling IT have substantially changed as more companies move data to the cloud. Having experienced and knowledgeable professionals that are well-versed in the actual infrastructure of any given company or firm’s data has both shrunk and grown. A significant portion of the properties of information technology that used to be in-house is now controlled by external parties. For example, when running an Exchange server in-house, information technology staff controlled the timing of updates and whether or not they were taken.
How does this relate to custodial interviews? You have to find the right person to talk to because it may not be the same person as last month. The IT administrators may not know as much – and they may not have to know as much – as they used to. This can impact their ability to help you locate information needed for litigation or an internal investigation.
Now, as many have moved to Office 365, there is no control over the features released and whether an update can be applied. Sometimes, elements of the graphical user interface (GUI) are changed without much or any choice for users; for example, how you attach a document to an email is different now than it was several months ago. On the eDiscovery front, Microsoft’s tool has changed its name to Purview and combined features such that a new round of training is necessary even if a user has familiarity with the previous product. This is another tool where users and even administrators may not control when updates occur.
Another reason conducting custodial interviews is a critical building block to a solid foundation is the prevalence of remote and hybrid work. In these “bring your own office” days,
people are working in multiple locations, which means the data is far more dispersed than it used to be. Now, workers can be in home offices, cars, RVs, kitchens, or workshare spaces, as well as their desk at the office. This results in a multitude of potential places to store data.
Employees will find the path of least resistance to accessing and storing their data, which may not always align with company policies or those who work in a traditional office environment. This causes more challenges than bring your own device (BYOD); rather, its bring your own office storage and cloud, which adds to the number of potential locations for data being requested in litigation or internal investigation.
It’s not as easy to get the interview or have the person remember where they were working at a particular time and where that data may be. Something as simple as printing documents – at home, you might print them and set them somewhere with more potential locations than in an office with one room and one desk.
During the interview process, you might discover that the person intended as 30(b)(6) or used previously might change. You might be faced with more individuals that need to be prepped for an interview as IT becomes more cloud-based and decentralized. We’ve seen a growth of third-party 30(b)(6) witnesses and see the custodial interview process growing to include third-party vendors and other experts to support the process effectively.
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Dr. Manes routinely serves as an expert witness including consulting with attorneys on data preservation issues. He contributes academic content to peer-reviewed journals and delivers classroom lectures. See his full CV at gavinmanes.com.
Dr. Manes has published over fifty papers on eDiscovery, digital forensics, and computer security, countless blog posts, and educational presentations to attorneys, executives, professors, law enforcement, and professional groups on topics from eDiscovery to cyber law. He’s briefed the White House, the Department of the Interior, the National Security Council, and the Pentagon on computer security and forensics issues.
At the University, Dr. Manes formed the Tulsa Digital Forensics Center, housing Cyber Crime Units from local, state, and federal law enforcement agencies. He’s a founder of the University of Tulsa’s Institute for Information Security, leading the creation of nationally recognized research efforts in digital forensics and telecommunications security.