Pinpoint the inefficiencies in eDiscovery to get the most out of your data and your dollar.
Inefficiencies in eDiscovery plague all phases of the EDRM and have a way of bloating invoices slowly but surely. Despite dramatic improvements in recent years that streamlined the overall process, there’s still room for improvement in every area: legal holds; custodian and data identification; data collection; preservation and processing; review hosting; analytics; and document review and productions (both outgoing and incoming). To get the most out of your organization’s eDiscovery endeavors and dollars, the first step is to identify your areas of inefficient eDiscovery across each step of the EDRM workflow. We recommend putting a magnifying glass to the following “danger zones” where efficiency tends to decrease while your bill does the opposite.
1. Litigation Holds
Litigation holds, and the custodian questionnaires (“CQs”) that often accompany them or follow closely behind, are critical beginning components to an efficient eDiscovery process. Without a well-developed litigation hold solution and workflow in place, important data might accidentally be deleted or otherwise spoliated. Custodian Questionnaires are especially helpful in identifying:
- where the data lives—custodial, structural, cloud-based, or other data sources that exist;
- who can help access and extract data from those sources;
- what that data might look like and how the attorneys can use it; and
- how to effectively prioritize the collection, processing, analysis, review, and production phases.
Inefficiencies in these initial steps become compounded issues down the eDiscovery road. Whether you’re using legal hold software or managing your holds manually, doing this first step correctly will help you define and control the scope of the rest of your project.
2. Data Identification
Too often, organizations jump into data collections without understanding the bigger picture that informs precisely what to collect. Improper or insufficient data identification leads to unnecessary delays, wasteful repeated collection efforts, costly overcollections, and potential spoliation risks. To avoid these eDiscovery inefficiency traps, start by including the right people in your initial meetings. Creating a clear, comprehensive plan with them will be less costly, more efficient, and less disruptive than trying to loop them in later when things go awry.
In a kick-off/scoping call with your eDiscovery service provider, make sure the proper corporate IT, messaging and O365 administrators, and other ‘data keepers’ are included in the discussion so they can inform the collection conversation and planning efforts. These team members come to the table with invaluable insight. Thirty minutes in a room with them up front is much more efficient than the time they’d spend answering endless one-off emails and rush data collection requests from attorneys who didn’t identify data sources correctly from the start.
3. Data Collection
- Prioritize the most important custodians and data before you start collection. Discuss and clarify with your legal team so they can focus their initial efforts on those priority resources. Not only will that speed up their intake of the facts and legal issues at hand, but it will inform and determine further steps in the eDiscovery process. Indeed, in some cases you may even find that the priority custodians and data alone are sufficient.
- Got backups? This is the time to identify where litigation-related data lives and whether your backup tapes are subject to a discovery request. Most companies create backup tapes for disaster recovery purposes, so be prepared to defend those sources. You’ll avoid unnecessary time and expense if you don’t have to rely on backup tapes for litigation or other legal events. Combat chronic inefficiencies in eDiscovery with an ESI Playbook that defines where data exists and what the company’s plan is to identify, access and provide that data when necessary.
4. Collection vs. Processing
When you collect (preserve) data, it’s always best to cast a wide net. In other words, it’s safer to over-collect than to risk missing responsive data, which can lead to failure-to-preserve arguments and sanctions. (Note: arguing about data preservation is distracting, costly, and extremely inefficient.) The collection and storage of original data has always been one of the least expensive parts of the eDiscovery process, but it’s also a well-known culprit for the costliest sanctions.
The truth is: you don’t necessarily have to process, host and review everything. Once you collect and preserve the data, you can use eDiscovery tools to cull that data down to the most responsive and relevant documents before the more expensive costs (hosting and review) are incurred. Don’t assume, just because you collected 2TBs of audio or video files, that you must then transcribe, search, process, host, or review all of it. This is a false equivalency that can lead to very costly data management missteps. Don’t let the costs of later steps scare you away from collecting and preserving all the right data early in the process. When you curb inefficiencies in eDiscovery by collecting and processing wisely, the costs will be negligible—unlike the many hours you’ll save.
5. Search Terms
This one may come as a surprise, but it’s an area where we still see astonishing amounts of wasted time, effort, and money. Yet, it’s incredibly easy to fix. Here are two ways the search term process can threaten to break your bank:
- Negotiating terms is an area where we see many, many hours wasted. Too often, parties will negotiate in seemingly never-ending conferences and email threads about whether certain search terms are too broad or too narrow—remarkably, without any context. Stop that. You can always tweak terms that result in high hit counts. Don’t waste time over-negotiating searches in a vacuum; do some basic searches first and then focus on those terms that have actual issues.
- Incorrect search term construction will produce overly broad results or insufficiencies. Run your search syntaxes through an inclusivity test: check to make sure they’re inclusive enough, but not too inclusive or incorrectly inclusive. An expert search technician can be an invaluable resource in helping construct searches that meet the goals. Search experts are worth their weight in gold here, and a small investment of their time will pay large dividends in savings.
6. Review Hosting
The industry is full of hosting options viable for matters of all types and sizes. Some have limited features, but many of those can get you to the finish line just as well as the industry leaders can, depending on the needs of your case. Snuff out inefficiencies in eDiscovery before they emerge by asking your vendor what options they have. You might find that there’s a less expensive option that will suit your matter just fine. For matters that go dormant, consider hibernating the hosting site, which can cut costs by half or more. As your hosted data increases in size, ask for volume discounts (especially if you’ve centralized your hosting with a single vendor). For internal investigations or initial early case assessment (“ECA”) purposes, it may make sense to load only the text extractions first—you can do your initial analysis or investigation and overlay the native files later.
If you’re not using analytics, you should start right now. Your new and beautiful friendship with analytics tools will illuminate inefficiencies in eDiscovery that you didn’t even know existed. Don’t be intimidated—the best-in-breed data analytics tools are much easier to use than ever before and are no longer cost-prohibitive. Even for smaller cases, advanced analytics can reduce workload and increase accuracy in all phases of review, including:
- ECA efforts
- Document review
- Issue review
- Privileged review
- Third-party production review
8. Document Review
- Issue coding—or tagging documents beyond their responsiveness—often is taken to an extreme, making for one of the largest wastes in document review. Sometimes we see 50 or more tags on a single document, which slows the pace of review immensely and adds significant costs for very little benefit. Especially now that modern searching and analytics are available, issue coding is a relic of the past that you’d best leave behind. On the other hand, recycling attorney work product, especially for serial custodians, can be a massive time and money saver, since it ensures consistency of privileged calls across document copies, multiple versions, and even different matters.
- Pricing-wise, flat-rate or per-document models are best, as they remove soft costs and other unknowns, e.g. overtime, review protocol changes, human error, or additional QC efforts. The most modern hybrid approaches blend attorney reviewers with subject matter and data analytics experts who wield advanced machine learning platforms, AI, and other data tools. This hybrid document review model is one of our favorite antidotes to inefficiencies in eDiscovery because it delivers the most meaningful benefit and highest accuracy, usually at a fraction of the cost of traditional review.
- Document Review Protocol is another powerful tool that we love to help clients create and watch them return to over and over. Document review strategies vary drastically between outside counsels, so the potential for significant inefficiencies is huge, especially in larger matters. Whether you’re a GC, senior in-house counsel, or outside counsel managing multiple matters for your client, stave off inefficiencies from the get-go with a repeatable document review protocol that defines:
- Cutoff points (referring to TAR models)
Consistency, more than anything, bears the fruit of efficiency. Here again, develop and use the same production protocol in all your matters. Establish that protocol with opposing counsel from the outset, and when ready to produce, start with small sample productions to work out any questions or issues before diving into large-scale productions. Those simple measures will decrease costs, inefficiencies in eDiscovery, and wasteful disputes. In addition, this allows an experienced vendor to run pre-production processes that will speed up your productions overall. It also will ensure that inbound productions are received in the proper format.
Start with a Plan
If your law firm or corporation does not have a clear, written eDiscovery game plan for handling all your matters in a uniform manner, you’re wasting incredible amounts of time and money, not to mention adding stress to your regular business operations. Any process guru will tell you that a chaotic, ad-hoc, reinvent-the-wheel-with-each-new-matter approach not only breeds inconsistency, but it also reduces defensibility, increases risk, expands timeframes, and impacts costs.
If you truly want to control your costs and minimize the impact of legal matters on your organization, take the right steps now to develop and have a playbook ready before your next legal matter begins. Your eDiscovery playbook should be customized to your company’s environment and legal needs, cover each of the eDiscovery phases, and incorporate the tips and ideas outlined here. Doing so will help assure that all your legal events move through the process efficiently, defensibly, at the lowest cost, and with the least disruption to your business as possible.
For two decades, BIA has been helping clients plot out customized eDiscovery road maps and game plans. Reach out today for help with yours, and stay tuned for future blogs as we dive further into stages of the EDRM and detail ways to tackle inefficiencies in eDiscovery wherever they exist.