By Brian Schrader, Esq. and Barry Schwartz, Esq., CEDS
During our recent webinar, which you can view here, we examined how old technologies, outdated practices, inefficient workflows and general knowledge gaps can result in significant wasted costs. We outlined numerous ways to streamline eDiscovery processes and trim costs, including our recommendations on how to:
- Create a legal event team that is educated on the process, with responsibilities clearly assigned in advance.
- Establish and follow a written protocol that addresses each step in the EDRM.
- Manage legal holds more effectively, efficiently and defensibly with largely automated software solutions.
- Implement and leverage Custodian Questionnaires to help identify key players, collect essential information easily and efficiently, and help eliminate unnecessary data collections.
- Incorporate early data analytics to identify key data and eliminate noise.
- Choose the right collection method for your needs (and how to do so).
- Use in-depth analytics and technology assisted review to improve accuracy and reduce costs.
- Leverage institutional knowledge during review by using a dedicated core team.
- Consider alternative production formats and rolling productions.
We took a few minutes at the end of the presentation to answer a few great questions from participants. We wanted to share those answers here for our readers as well.
1. What’s the best way to document a defensible and repeatable eDiscovery workflow?
We suggest developing a detailed runbook that documents all internal processes, including litigation holds, custodian questionnaires, data collections, data processing and how data is culled, reviewed and produced. Having a guiding document, complete with easy-to-use checklists, on your shelf that covers the principles to follow for an eDiscovery matter will help you prevent wasted costs as you go through the process. And it will pay for itself many times over.
2. Could a standardized eDiscovery protocol be at risk for discovery?
In most cases, and especially when counsel is involved in at least reviewing that protocol, the protocol itself is likely covered by attorney/client privilege, which means it’s safe. At the same time, by demonstrating that you have a standardized process that has been used successfully on a number of cases in the past, it can be a great tool to present to opposing counsel and something both sides can agree to. That also allows you to maintain control of how the eDiscovery process is conducted. So, even though the protocol isn’t necessarily discoverable, you might not care if it was, because it would demonstrate that you’ve put a lot of thought and effort into the process.
3. What are the best practices for addressing accumulated eDiscovery storage costs with a client?
First, try to control the amount of data that you collect in the first place through targeted collections, and occasionally audit the data you have to make sure you’re not saving something you don’t need. For clients with large storage bills, it helps to think of them not as one-off expenditures, but a regular cost of doing business. One way to reduce your bill is enter into a long-term bulk storage agreement with your vendor for a reduced cost or flat fee. Vendors will be likely to give you a significant discount because you’re making a long-term commitment as opposed to a month-to-month agreement.
4. What advice do you have for a new eDiscovery manager when asked to propose an efficient workflow?
We’re big proponents of checklists at BIA, because they help you start at a certain point and know what you need to do to reach a successful conclusion of a project. So, we suggest creating an outline of what steps need to be addressed, beginning with the project kickoff, so you can start the project on the right foot. And then we suggest creating a detailed guide for your entire eDiscovery process.
5. What technological eDiscovery tools do you recommend for corporate legal departments, and do they scale into other legal operational areas?
Full disclosure: We’re a bit biased, because at BIA we originally developed the TotalDiscovery tool, even though it’s now its own company. However, we still think it’s one of the best tools today because it covers the entire left side of the eDiscovery process, handles everything remotely, requires no software or hardware installations and is extremely easy to use. From the first legal hold, to collecting data from just about anywhere, to culling that data and loading it into your review tool of choice, it covers each step with amazing ease and simplicity.
That said, we use other tools to complement it, because data collection has gotten very diverse. When the industry was young, the vast majority of data was found on desktops, email servers, network shares and backup tapes. Now, there’s social media, applications like Evernote and unlimited storage solutions like OneDrive or Google Drive. There can be data everywhere, so the only way to handle that is to have a variety of tools.
For review tools, Relativity is by far the market leader for good reason. We also use Catalyst’s Insight for some projects, and Reveal’s InControl solution is great as well. It really depends on the particular need, and often most importantly, the preference of the attorneys who will be using the review platform for their work.
In terms of scaling to other legal operation areas, some of our clients who originally licensed TotalDiscovery for eDiscovery purposes are now using it to send HR or security policy notifications, tracking, auditing and related questionnaires. It’s a great way to clearly track who has received a piece of communication, whether they’ve read or acknowledged it, and if they’ve been sent reminders. And it allows you to leverage that spend across other departments and needs.
Some of our clients also are using TotalDiscovery to run data collections on exiting employees. Anyone in a senior position, for instance, should have their data collected on the way out the door in case there’s a need for it later on.
Just as an aside, ACEDS is also an excellent resource for project managers, managing legal requirements and people planning.
6. Does remote collection software work with custodians connected through VPN or public Wi-Fi?
Yes, but that can depend on the collection software being used. With TotalDiscovery, for example, you can collect data from just about anywhere. Indeed, we’ve even had people collect files remotely while flying 35,000 feet in the air using the plane’s Wi-Fi connection. And no worries on data security, regardless of your connection type, because TotalDiscovery encrypts everything with AES 256-bit encryption on the local device before transmitting it – and uses secure transmission technologies as well.
7. How can a paralegal keep attorneys focused and engaged on eDiscovery?
It’s understandable that attorneys are going to be focused on the legal issues and arguments of a case instead of eDiscovery. But they need to understand that this is their ethical obligation, and if they don’t pay attention to it, they could potentially face malpractice claims. If you have a plan already in place, you can use that to explain what they need to do, then focus on implementing the plan based on the guidelines you’ve set forward.
Thanks again to those who joined us for our recent webinar (which you can still listen to here). Keep checking our blog regularly for more insights into eDiscovery!