In the good old days, before emails, cloud storage, and electronic signatures, the world was managed with documents made of paper and stored in filing cabinets made of metal.
Offsite documents were kept in a warehouse in New Jersey, not a Dropbox in the cloud.
The downside is that fire, rain, human error, or worse could cause records to be permanently lost. The upside was that discovery was limited to, say, a few hundred boxes. Not bad. Not great news for the junior associate, but not bad.
The world is online now, and almost every transaction is partly -- if not wholly -- digital.
One of the largest impacts is that the ability to replicate data is nearly endless. People used to literally make carbon copies of a typed memorandum for a half dozen people. Now they can “cc:” fifty people in an instant – each of whom can reply. And so what was a few hundred boxes thirty years ago could be a few thousand (virtual) boxes now. Or, many, many more.
So the big question, then, is how do we build a process around e-discovery to manage costs, integrate quality control measures, and allocate resources properly?
What process is repeatable, affordable, efficient and accurate, when some of these goals feel contradictory?
Now that the data is digital, it is important to leverage the advantages of technology. While the volume may be many times greater than in decades past, the ability to search, filter, sort, and analyze electronically provides new opportunities to make even the largest projects manageable.
Here are 7 important considerations when building out your e-discovery process:
- Controlling discovery costs is key to client relationship management.
The legal costs of discovery risks becoming the tail wagging the dog. What should be a preliminary step of surveying potential evidence is more expensive than the actual legal heavy lifting.
This is not the kind of breakdown on a legal bill that a client wants to see – the big expenses should be for value-adds a law firm and its discovery strategists bring with regard to sophisticated expertise, not the time spent combing through volumes of data. If you don’t have a discovery strategist then I’m here to help!
Explore ways to reduce the large spend at the tail end of discovery before discovery kicks off. If you’re always attempting to force projects into a review and produce workflow hoping to get 3-5 bids then you probably have already spent more money than you should have.
- Anticipating scale.
First, consider what the volume of data is likely to be.
If the opposing party is publicly listed, or otherwise highly regulated, you should prepare for an extensive number of records. If the business is B2C, there is likely far more correspondence between inside sales, vendors, customer service, and other in-house departments vs external communications like a B2B operation.
Consider types of data that are by definition not relevant and can be eliminated, or materiality thresholds to narrow the scope. Also, and this is a big one, determine if moving through to review is the correct path for the discovery obtained in the matter.
- Consistent process.
E-discovery is never a one-man show. Since you have a team working on the data, it is vitally important that everyone is trained on a uniform way of analyzing and cataloguing the data.
If that is “immaterial”, “relevant”, “privileged” or whatever makes sense in this context, it is imperative that a consistent way of tagging or marking each record is agreed on and implemented. That was true even with paper documents, but even more important with the magnitude of data to manage in the modern era.
It is often helpful to have a Review Liaison to oversee and ensure consistency throughout the review phase.
- Text searching technology continues to advance.
Keyword searching has become much more sophisticated by incorporating complex groupings and the use of advanced analytics. This ever-evolving area of the industry can mean investment in software or trained staff, and careful review across vendors to understand the capabilities and limits of automated review.
- Resource allocation.
You will need to allocate resources properly against different stages of the process to manage costs.
This might mean engaging temporary or contract staff to do the initial review, and junior legal team members to review what is escalated as relevant. You will need to think about management resources for a review so you can maintain proper protocols and daily log changes in review calls.
- Quality control.
Although you will want to be cost-efficient and put the most economical resources against the most commoditized labor, you also need to ensure there is a way to test accuracy and consistency.
This may mean that every 10th document is escalated and reviewed to confirm that it is classified properly. Consider how large the team is, how much turnover in staffing you have and other parameters that expose the process to inconsistent or inaccurate execution.
- Presentable and defensible.
While it creates efficiencies when you can design a system for e-discovery that can be replicated, you also need a process that can be tailored to specific needs.
Your process for e-discovery needs to work for your client, not just you. Be sure that your process can be articulated, anticipates and addresses concerns, and quantifies savings.
At every stage keep in mind how you can reconcile a client’s concern for the bottom line and assurance of thorough analysis.
Don’t always force discovery into the standard process. Make sure you have the correct people and plan before jumping into discovery. Knowing is half the battle.