Do you treat eDiscovery as a revolution or evolution?

This article was originally published on October 12th in the Buffalo Law Journal.

Most lawyers have a working vernacular of eDiscovery requirements, both past and present. That being said, is your organization evolving quickly enough to address capture and storage of Big Data, the massive volume of electronic documents and data traversing internal and external computer networks? IBM recently reported that, “Every day, we create 2.5 quintillion bytes of data —so much that 90 percent of the data in the world today has been created in the last two years alone."¹

With this much electronically stored information (ESI) available to us, we need smart solutions to facilitate data storage, retrieval, management and security, thereby maximizing process efficiency and defensibility. As new FRCP amendments are on their way before year-end, there will be greater focus on proportionality, with our honorable presiding magistrates increasingly calling upon subject-matter experts to help define the size and scope of a data population. This brings the topic of ESI front and center — an unavoidable topic that legal teams must fully understand in order to build credibility before the court.

To have the greatest impact may require collaboration between in-house and outside counsel, a strategy that can also control the potential costs of a case. As such, it has never been a better time to examine and assess how your company can better prepare for and strengthen eDiscovery practices.

Below are three key points to help your organization fully leverage people, processes and technology, thus creating a practical, cohesive discovery strategy within your organization.

Defensible collection of ESI

Today, there is a significant focus on the ESI collection phase, and a well thought out and defensible preservation forms the foundation of what may follow. Considering that to properly preserve ESI typically costs less than 1 percent of the overall cost of the discovery process, it may be unwise to take risks. In many instances it comes down to an agreement between both sides on the parameters. If you and your client are outside of those parameters, you potentially open yourself up to a legal challenge. Lead counsel will also need to determine whether your approach will support your argument. Regardless, a documented, defensible workflow will alleviate most of the typical concerns, such as limited expertise, metadata spoliation, chain of custody issues and the threat of court-imposed sanctions.

Embrace technology

Computer-based analytics: There has been a considerable amount of pressure from corporations for their outside counsel to reduce costs, while still providing the same level of service. Applying various types of computer-based analytic capabilities can result in dramatic cost savings and effectively hold the line on legal budgets.

Early data assessment: EDA tools can also provide powerful analysis and assist in identifying potentially relevant data. Gaining valuable insight to the ESI corpus can reduce the amount to process further, which will assist in minimizing costs, where possible. Lawyers and their clients should consider making EDA a part of their front-end process for the appropriate cases. This can be followed by a filtering strategy to reduce an ESI population to documents that are the most likely to be germane to the matter.

Computer-assisted review: Also known as technology-assisted review and predictive coding, computer-assisted review (CAR) involves the use of sophisticated algorithms to enable a computer to determine potential relevance, based on interaction with, i.e., training by a human reviewer with subject matter knowledge. Remember how lawyers were once reluctant to embrace CAR? Well, as it turns out, Judge Peck has not been the only one to tout the benefits of utilizing software to revolutionize the review process. Courts uniformly cite his ruling in Da Silva Moore v. Publicis Groupe & MSL Group, No.11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012) with approval. Now, the stage has been set for counsel to be capable of getting to the heart of a matter more efficiently than ever. In the end, it is important to be able to measure and be responsible on why you do or do not use assistive technology on certain matters. The ability to evaluate and identify litigation peaks and valleys will also be a factor when determining if the project at hand can be handled in-house or would be best handled by your preferred partner.

Build a comprehensive team

Having the right people, processes and technology in place within your organization will enable you to collaborate more easily.

In order to evolve, these are key ingredients, as are the appropriate personnel to design best practices and perform them daily. If you are serious about process improvement, responsibilities should be documented and workflows designed in anticipation of future needs.

The firms and organizations that are having the most success with eDiscovery have made process standardization a priority. This includes implementing legal hold protocols (with auditing) and working with in-house counsel to develop comprehensive ESI questionnaires. This will assist organizations to create a data map, which will result in being better prepared to efficiently respond to any document requests.

Having an in-house ESI specialist can also be an asset when it comes to FRCP 26(f) meetings. It is imperative that the attorneys are able to articulate the measures which have been taken by their clients to implement a legal hold on all potentially relevant information, and address any potential challenges likely to be encountered in the collection, review and subsequent production of ESI.

Considering the complexity of eDiscovery, a service provider with expertise in this ever-changing discipline should be a part of your team. With proactive consultation, a consistent project management team and flexible workflows, they will be able to complement/supplement key areas of need. This partnership establishes a fluid set of procedures that can make a substantial difference.

Remember, establishing some basic eDiscovery best practices within your organization is an evolution, not a revolution. Start by simply forming a practice group or a committee, which may include your designated specialist(s), as well as business partners, associates and paralegals. Soon your initiatives will begin to take shape.

You can learn more about ESI, eDiscovery and FRCP through sources such as EDRM. Also, engage with attorneys from other firms, who likely share the same challenges. And, again, the importance of meeting with your preferred service provider cannot be understated. Their experience and insights will strengthen your knowledge in these specialized areas as it pertains to your specific business practice and internal processes.