A critical consideration for every step of the EDRM eDiscovery process
Today nearly every litigation, arbitration, regulatory inquiry, and even internal investigation, involves the eDiscovery process. Yet, many organizations find themselves unprepared to address those needs, wasting critical resources, time and money – not to mention increasing risk – with every legal matter.
But don’t fear. Diligence, and the maturity that the last two decades have brought to eDiscovery generally, has made it easier than ever to get your house in order and be prepared. Whether you face routine such needs or encounter the rare request – a little preparation and planning can turn a disruptive, costly fire drill into a smooth, efficient and calm process.
This article explores the questions you should ask to determine your needs for a successful eDiscovery process to proceed and to ensure your organization is prepared when the time comes.
The eDiscovery Process as a Standard Business Process
You likely have established a variety of standard practices in your organization, whether that be accounting processes, product fulfillment workflows, or other routine business processes. In today’s data-intensive world, you have even likely prepared for risk events like data breaches and business continuity and recovery in the event of system disruption or disaster. And you have developed and put those plans in place whether you’ve experienced such needs or are simply preparing for the possibility.
You must look at your eDiscovery process no differently. Indeed, companies should establish a standard business process to address their eDiscovery needs, regardless of how frequent. Doing so will help ensure that your core business isn’t disrupted when a legal event occurs, just as you’ve prepared other business continuity plans. A good plan will help you truly control your eDiscovery costs significantly and ensure that your entire process is comprehensive and defensible and that the fire drills can finally come to an end.
We have helped organizations from small firms to Fortune 100 companies establish Standardize eDiscovery Workflows and Protocols that transformed their entire process, saving them significant costs and eliminating unnecessary disruptions to their core businesses, and we can do the same for you.
Centralize Your eDiscovery Today
Along with standardizing your eDiscovery process, you must select a single end-to-end provider that you can trust to follow that process every time. You wouldn’t use a different vendor for every shipment you make. You wouldn’t use a different accountant for each state tax return you file. Why would you use a different eDiscovery provider for every case – or worse, let someone else (like your outside counsel) make that decision for you?
We’re not digging at law firms here – they just aren’t in the best position to make that decision for you, especially when you use multiple outside counsels for different matters, each of whom will generally only think about the considerations of the specific matter for which they were retained, as they should.
It’s your data, it’s your legal spend. So you should control the process. Entirely. If you don’t, you’ll waste not just money, but frustrate your employees and internal teams with a multitude of divergent processes and requests, taking their focus from their core tasks – your daily business needs and success.
Too often companies let their outside counsel decide separately on each case not only how to conduct eDiscovery, but much worse, which vendors to use. The result? An inefficient, costly and convoluted process for each new case, with your data ending up in places you don’t know and with vendors whose quality, process and – most important – data security process and protections that you haven’t vetted. Most law firms are not data security experts, and you shouldn’t assume that they know all your data security and compliance obligations, needs and responsibilities.
What’s more, litigations almost always involve some of your most sensitive corporate information, so you must take steps to ensure it’s protected. If you don’t centralize your eDiscovery, you’re vastly increasing your risks and costs. By centralizing your eDiscovery with a single, end-to-end provider, that you control and have fully vetted, you can reduce your costs, reuse your legal spend across cases, and – again most importantly – maintain the control and security of your critical enterprise data.
Take Legal Holds Seriously – and Automate Them!
It’s no question that legal holds are a serious matter. You must take your company’s legal hold and data preservation obligations seriously, and issue them timely or face disastrous consequences. Yet, even given the critical nature – and relative ease of compliance – companies often fail in this task, risking their entire litigation claims and defenses on procedural technicalities. That’s even despite the fact that properly handling legal holds is about the cheapest and easiest eDiscovery obligation to meet.
And please, if you’re doing so, don’t continue to rely solely on emails, tracking spreadsheets and overworked employees to meet those needs. If you’re still doing that, you’re not only wasting your critical internal resources, but you’re spending way more than modern automated systems cost. Automated legal hold systems are more affordable than ever, allow your internal teams to focus on much more important needs, help ensure your process is done correctly, and help prevent human error inherent in any manual practice from invalidating your entire legal hold process.
If you haven’t already, speak to a qualified eDiscovery provider today about the myriad of inexpensive, automated software solutions that you can very quickly and easily implement, often in minutes, to entirely and defensibly address this need. And, you’ll often be able to leverage those same systems for other legal, regulatory and compliance needs as well!
Custodian Questionnaires simplify the eDiscovery process
Most law firms will require custodian interviews during discovery in litigation, often conducted in person, which not only increases billable hours but incurs travel costs and employee disruptions and anxiety as well. But there’s a much less expensive, more efficient and less disruptive way to gather much of the information collected during those costly interviews – custodian questionnaires. And what’s more, most automated legal hold solutions include that functionality at no additional cost.
Again, we’re not dissing law firms here, and we’re not saying that custodian interviews don’t have value – they clearly do. In fact, custodian questionnaires can vastly improve the custodian interview process itself. If you utilize custodian questionnaires properly your counsel can reduce the number of custodian interviews, help them better prepare for those interviews, focus on key players, and improve their overall interview process and fact gathering. All while significantly reducing your legal spend in the process. Not to mention it will create a comprehensive database of information that not just your counsel, but your internal teams and other experts can utilize as well. See our sample custodian questionnaire for a great place to start.
And please don’t think that custodian questionnaires are limited to just asking custodians where relevant data may reside. If you’re only doing that, you’re ignoring one of the most valuable uses of custodian questionnaires. Too many vendors focus solely on that utilization, but custodian questionnaires, when properly done, are much more valuable than that!
From asking custodians who else inside (or outside) the organization might be involved in a particular dispute or have relevant information, to asking them fact questions about the dispute itself or their involvement in key activities, custodian questionnaires can be leveraged to gain an incredible amount of intelligence from custodians both inside and outside your organization – all in a highly organized and much more efficient way.
And don’t worry, custodian questionnaires, when conducted properly, are covered by attorney-client and/or attorney work product privileges, so they are just as safe and secure as custodian interviews.
Remotely Gathering Data Should be Your Standard eDiscovery Process for ESI Collection
Gone are the days where armies of forensics technicians or IT staff descended on your employee’s computers, imaging everything in sight – or they should be! Today, there are much better solutions to collect data, regardless of type, system or location.
It’s elemental, when you think about it, that any cloud-based system can be collected remotely. After all, that’s one of the largest benefits of the cloud – data can be accessed (and thereby collected) at any time from anywhere. But the same goes for local data stored on your company’s traditional servers and systems, your employee’s local computers, and laptops, and depending on the device, oftentimes mobile devices like smartphones and tablets.
In short, if you’re still paying for technicians to travel sometimes all over the nation – or sometimes the globe – to collect your data, you’re doing it wrong. There are much better – and extraordinarily less expensive – ways to accomplish that task. And it’s often much faster, more efficient and nearly eliminates the traditional disruption to your employees and your business.
Sure, some data resources may still require onsite visits or physical access, but that should be the exception, not the rule. Done right, remote data collections can accomplish the vast majority of your data collection needs, should be practically seamless and unseen, cost vastly less than old-school methods, and nearly entirely eliminate costly employee disruptions as well.
Targeted Data Collections Vastly Reduce Costs
There’s one clear and overriding factor that will control your eDiscovery costs more than anything else – the sooner you can reduce the data at issue, the better. And that starts with employing defensible targeted data collection processes and tools. Simply put, the more you can avoid collecting unnecessary data at the outset, the more you’ll reduce your costs at every other step of the process.
Any data collection solution or process you use today, therefore, should have the ability to target the most critical data. You probably have heard of terms like “de-NISTing” or “Known File Format (KFF) Elimination” – terms that are used to refer to the elimination of programmatical and system files from the data collected. While that’s still a critical step in eDiscovery, as you can’t always eliminate such files entirely, the technology you use to collect the data in the outset should help you eliminate that data from even being collected in the first place, wherever possible.
Not only do the right solutions eliminate a lot of the human costs and business disruptions, but by targeting your data collections properly (while still ensuring proper preservation), you’re reducing the amounts of data at the very first step, sending ripples of costs savings through the rest of your eDiscovery process.
Think Critically About Non-Standard Data Sources
When we started in eDiscovery nearly two decades ago, “non-standard” data sources tended to be removable media (USB keys, disks, tapes and the like) and other such sources now often considered archaic. But today there’s the cloud (e.g. Box, Microsoft’s O365 and Azure, Amazon’s AWS and much, much more), SaaS applications (e.g. Salesforce, NetSuite, Slack, Teams and more), Social Media (e.g., Facebook, Twitter, Pinterest, Instagram, and many more), and the list grows seemingly every day. While some of those sources might be obvious, and you might be quick to think of business applications like Salesforce, Office365, OneDrive, and Slack, many overlook the value of other sources.
Social Media, for one, is an often-overlooked source that many think only useful for personal injury cases and the like. But cases involving business disputes, contract breaches, employee harassment claims, defamation, and so many more, can all benefit from a comprehensive Social Media Investigation. And you’d be surprised how inexpensive those investigations can be. Indeed, we’ve had clients get multi-million-dollar claims dismissed early in litigation with evidence obtained through social media investigations, not only eliminating claims that could have reached into the millions, but also avoiding tens or hundreds of thousands in legal costs too. For a real-life example of the use of social media as evidence see our blog post, Social Media in Discovery is Fair Game Under FRCP 26(b).
And mobile and other device data are starting to play a more and more important role in litigations. Health and activity data from fitness trackers can become relevant in everything from personal injury and medical malpractice cases to medical device litigations. Business is starting to realize too that the multitude of data created by everything from oil platform systems to aircraft engines (the newest aircraft can generate terabytes of data with each flight) can play a critical role in proving a case or providing defenses to claims. Personal devices can even reveal location data that help establish incriminating or exculpating data in criminal cases.
Data is everywhere in our lives today, and that’s only going to grow. If you don’t take time to think critically and engage an expert to help your analysis in every case, you could be missing critical data that can make or break your case. You undoubtedly will be surprised and shocked at what information is out there! Consult an experienced professional to help you find out just how these non-standard sources can help.
Data Processing & Early Analytics – Essential to a Quality eDiscovery Process
Back in the day, people paid close attention to data processing, mainly because it hadn’t been standardized yet. But today, most data processing systems provide the same basic functions. The difference now comes in how the professionals use those systems and the early case analytics and other tools that some platforms offer.
Data hosting and document review are two of the most expensive parts of an eDiscovery process. After targeted collections, early case analytics is the next best place to reduce your data before you move to those steps. The more data you can eliminate the more you can control those costs. The proper use of processing and the early data analytics tools available can help reduce your overall data earlier in the process and
From simple tasks like cross-custodian deduplication to more intensive tasks like using data analytics to more quickly eliminate non-relevant data, a qualified and experienced team using the right tools for the particular need at hand, can have a dramatic impact on reducing your data hosting and review costs.
Reducing Document Review Costs as part of the eDiscovery Process
Document review can constitute anywhere from 50% to 80% of your eDiscovery process. But it doesn’t have to be that expensive. By utilizing the right processes, the right artificial intelligence or machine learning systems, and the right people for the task, you can reduce those costs, while increasing the accuracy, quality and efficiency of the process.
If you are still using your litigation counsel to conduct your document review, even in small litigations, you’re wasting your time and money. That might be a controversial statement, especially to our many law firm clients, but it’s the truth.
Indeed, after many years of obstinance, it’s finally become accepted and established that machine learning systems (often called technology-assisted review, or TAR for short, in the eDiscovery industry) can outperform humans every time. And it’s supported by TAR independent studies and judges alike. This shouldn’t be a surprise. Document review is labor-intensive, monotonous, grueling and repetitive work – all things that machines are better at than humans. Machines don’t get bored, fatigued or frustrated, so they simply handle such tasks better.
In fact, this should be liberating to your outside counsel and improve your overall legal results. Outside counsel plays a crucial role, and freeing them from the monotonous, tedious and costly process of document review doesn’t reduce their role – it enhances it. It allows them to focus on your legal strategy and arguments, something that systems and artificial intelligence cannot replicate. In other words, it frees them to spend more time on what’s truly important.
And one last, very important point should be made here. All this is not to say that humans are not still critical to the document review process. If anything, TAR and machine learning make people – experienced and knowledgeable people – all the more crucial. Machine learning systems amplify the intelligence and experience (or lack thereof) of the people involved, so while those systems can drastically cut the human time required, it’s more important than ever that the people involved are knowledgeable, expert and experienced. See our article on the power of humans when using AI technology as part of legal document review.
In short, by utilizing the right technology, blended with the right team, the entire document review process can become much faster, much more accurate, and much less costly. And it should be used in every single case, regardless of size or complexity.
Document Productions – The Often Overlooked Factor in the eDiscovery process
When it comes to document productions (the act of providing relevant documents to the opposing or requesting party), too many companies consider it something solely in the realm of counsel. But doing so could increase your costs, and your risks, in every litigation. And again, that’s not a dig at counsel, it’s just a better, more modern and comprehensive approach.
While document production used to be a contentious topic, from what format productions would take to what metadata would be produced and how that’s simply no longer the case. Today, most document production aspects are standardized, with clear expectations and accepted industry practices. Yet, too many companies still pay their counsel to negotiate those agreements fresh with each case. Or worse, pay tens of thousands in unnecessary costs on conferences and even motion practice to litigate those issues.
Instead, you should establish your standard eDiscovery Production Protocol and provide that to your outside counsel at the outset of each new litigation, entirely eliminating that unnecessary legal spend. Indeed, creating that document is really part of creating your comprehensive business process as discussed above.
What’s more, having a consistent approach across all your cases can not just reduce costs, but it will reduce risks as well. By centralizing all of your eDiscovery with a single provider, you can ensure that not only is your approach consistent (which is incredibly more defensible) but that decisions like privilege and data privacy and protection are consistent across all your cases – and within each case.
Take it from a former litigator, this is important. Whenever we received redacted documents or saw documents listed on a privilege log, we’d immediately focus on those documents and search to see whether those documents were produced elsewhere. Any more often than not, there were. But with the proper process, centralization of your eDiscovery and the right protocols in place, that’s easy to avoid.
There’s nothing more frustrating than wasting costs, time and efforts on something that doesn’t generally even touch the true nature of the claims is given litigation. eDiscovery costs and efforts are part of every litigation, but when done right, the days where eDiscovery becomes the center, often to the detriment of the legal strategies and arguments themselves, is over. At least, if you do it right.