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To expedite eDiscovery, don’t forget the human element

by Seth Magaw


Human nature plus technology yields fruitful eDiscovery results.

Read time: 3 minutes

Law firms are always looking for ways to provide more value to their clients and differentiate themselves from other firms. Forward-thinking attorneys can use eDiscovery document review to gain an advantage with more efficient and creative analysis for their cases.

Save your clients significant time and costs by making your eDiscovery document review more effective. Put the right eDiscovery technology in place to more efficiently identify and prioritize relevant documents for review. And continually improve and fine-tune your eDiscovery document review based on your creativity, understanding of human behavior and awareness of how people talk in business communications.

The human element of eDiscovery

Litigation typically erupts from disagreements. Various disagreements can lead to emotional exchanges that often show up in electronically stored information (ESI), including email, chat and text communications. When emotions are high, many people’s guards can drop, and communication can become more passionate. Through this work, we’ve learned that when emotions are high, people’s guards come down and they communicate more passionately. Smart attorneys who use this awareness to devise lists of terms to help prioritize review and pinpoint potentially significant documents in order to more efficiently identify the most compelling evidence for their cases.

For example, my consulting team developed a list of provocative terms for eDiscovery document review, that included “damn” and “what the hell,” and that can indicate high emotion — often anger. Terms such as “kiss,” in professional emails might be worth a closer look as they may indicate an inappropriate relationship.

Recently, we engaged Ricoh's Managed Review Services to assist a client with a legal malpractice matter. We used our provocative terms list and also worked with the client to formulate their own list of relevant search terms. That process uncovered emails that revealed a pattern of disparaging remarks and infighting at the law firm that, ultimately, led to poor work and over-billing. This creative analysis helped the plaintiff win a large settlement quickly.

eDiscovery document review [can] help in much more efficiently identifying compelling evidence

Get creative, reduce costs

When developing a list of terms, be creative. Draw on your experience from other cases to come up with a list that will send up a red flag. Also, look for words that signal that an email is likely irrelevant. For example, try this during your next review: Search for the word “unsubscribe.” This term is likely to pop up often because of a U.S. law designed to allow recipients to “opt out” of potential spam. Try it and see how much potentially irrelevant material it weeds out. By using your knowledge and imagination, you can come up with other words that flag irrelevance in a particular case.

The RAND Group organizes document production costs into three tasks: collecting, processing and reviewing documents. About 73 percent1 of the total costs of document review come from the costs of producing electronic documents. Law firms can save significant time and money by streamlining their processes for producing and reviewing electronic documents. Attorneys’ charges are significant for document review services, and they review an average of 60 documents an hour. Do the math, and you quickly realize that savings can be tens of thousands of dollars for your client.

You can also use a more automated approach to eDiscovery document review to protect your client from handing over material that is not only irrelevant, but also potentially embarrassing or damaging to their reputation. In government regulatory cases, for example, you can sometimes negotiate to run certain filters that will potentially weed out emails that contain crude language or inappropriate jokes.

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The expertise of a technology consultant, combined with an attorney’s skills and knowledge, can make a big difference in the effectiveness and cost of the pre-review process.

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  1. 1. Nicholas M. Pace, Laura Zakaras. "Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery". Rand Institute for Civil Justice, 2012.