You may know it as eDiscovery—the exchange of electronic information between parties during litigation and investigations. Today, most discovery is eDiscovery, and legal professionals whose practices haven’t handled significant amounts of data in the past are increasingly of digital evidence at their disposal.
The right technology can make a big difference for your team, but so can the right process. So, when it comes to putting together your discovery process, where is the best place to start?
We spoke with Aaron M. Crockett, an associate at Harrang Long Gary Rudnick P.C. in Portland, Oregon, and Erica G. Wilson, an attorney at Vuono and Gray in Pittsburg, Pennsylvania about best practices for implementing an effective eDiscovery process at your law firm.
A note on the EDRM
The Electronic Discovery Reference Model, or EDRM, is a common starting point for putting together an effective discovery process. The EDRM lays out the discovery process from identification and preservation, through processing, review, and analysis, and all the way up to the final presentation of information.
In a nutshell, here’s what that looks like:
- Identification: Look for sources, or “custodians” of electronically stored information, or ESI.
- Preservation and collection: Collect and ensure that ESI is appropriately preserved—in its native format, as much as possible.
- Processing, review, and analysis: Prepare the ESI for evaluation, review it to find relevant documents, and analyze it for content and context relevant to the case.
- Production: Produce ESI for others in a usable format.
- Presentation: Present ESI at hearings, depositions, or wherever else you may need it.
It’s beneficial to familiarize yourself with the EDRM when structuring your discovery process. However, it’s also worth considering specific tactics that will help you achieve your goals at each stage.
Our discussions with Crockett and Wilson focused on what the discovery process looks like at the start of a matter, when gathering ESI, and when conducting the review process.
Prepping for discovery at the outset of a matter
When approaching a new matter, Crockett advises planning ahead for discovery. “Start talking to the client about collecting and analyzing data at the outset of the matter, perhaps even in the first meeting.”
Consider what information will be most useful to you
Start by examining the allegation or cause of action. Ask yourself:
- What elements are needed to prove or disprove the assertions?
- What facts might lend themselves to each element?
- Who might be in possession of such evidence?
Use these answers to guide your collection and analysis, keeping an eye out for any new questions or issues that may arise along the way.
Properly preserve new evidence
Early discussions with your clients can also help avoid the spoliation of electronic evidence, which can result in disastrous—sometimes case-dispositive—sanctions. A preservation letter sent to the opposing party early on can also put them on notice of the need to preserve potentially relevant evidence.
Here are a few tips to help set yourself up for a streamlined process when you’re gathering ESI, or data.
Start with tailored requests
When crafting a request for production of documents, Wilson explains, “start with tailored requests.”
I don’t want the universe to be produced. Restrict requests by dates and custodians. If two businesses have been working together for 30 years and the dispute started in 2016 in the HR department, do you really need ‘all documents, including but not limited to chiseled stone and ephemeral data, sent, received, created, or obtained by XYZ Inc. related to ABC Corp.’?
Align requests with your chosen review platform
Much of the heavy lifting during the discovery process will take place during review, so it’s important to have your review platform and process in mind from the get-go.
When creating requests, Wilson ensures they are customized to the review platform as well. “I’m drafting the technical aspects of the discovery requests tailored to the software the data will go into,” she explains. “We use two cloud-based software programs with different pricing models and I pick among them based on expected cost and features.”
Ask for native documents
“Go native when collecting and requesting evidence,” Crockett urges.
Dealing with native documents—rather than imaged versions created by the producing party—reduces data size and cost. “Letting opponents process native data into images for you leaves you beholden to their processes and can create delays and data loss when you try to shoehorn their processing into your system. Going native takes a shortcut around many of the logistical pitfalls that have plagued electronic discovery for decades.”
“Moreover,” Crockett adds, “native data contains far more potentially irreplaceable evidence in its metadata.”
Be aggressively reasonable
Well-tailored requests can significantly reduce the burden of review. Plus, being “aggressively reasonable,” as Wilson describes it, can be helpful later on. “If you end up having to move to compel something, it’s a lot easier to justify a demand for a six-month period of emails than to explain why you didn’t really mean Defendant should produce its old Telex records.”
Conducting the review
Begin with the end in mind
When setting up the review process, start by working backwards. This way, you’ll know exactly what you’re looking for, and you’ll have a clear idea of what you want to accomplish at the end of your review.
Your goals will greatly inform your process. For example, if you’re reviewing documents for attorney-client privilege, work product, confidentiality, or responsiveness, generate searches and document tags focused on these topics. Your tags allow you to code the documents in your review set by responsiveness, privilege, or issue, for example. If you’re reviewing documents to prove facts in dispute, your searches and tags should be keyed to those issues.
Tip: Save yourself time and effort by testing your searches at the outset to ensure that they are effective.
Centralize your review process
Taking the time to implement a streamlined process at your firm greatly aids the review process. “We have evolved from the old model, where every attorney handles discovery in their cases on their own, to a more efficient and sophisticated centralized operation,” Crockett says. Communication and training, standardized processes across cases, and the right eDiscovery tools are essential for such a system, he explains.
“Centralize your document discovery operations under a designated lead with sufficient technical knowledge,” Crockett suggests. “Too-many-chiefs syndrome leads to ad-hoc process fragmentation, delay, error, and missed opportunities.”
Cut down on what you need to review, and organize what’s left
Narrow the range of documents for review by identifying swaths that can be culled out. These could be spam, personal documents, file types with no content, etc.—anything that isn’t relevant to the review.
Similarly, focus your review by segmenting and prioritizing documents by custodian, potentially privileged documents, or using search terms. Finally, when creating your tags, think about the output. Use tags to identify which documents will be included or excluded from the production.
Using technology to streamline discovery
When it comes to eDiscovery, using Ctrl+F to find what you need won’t cut it, but the process also shouldn’t require break-the-bank technologies and vendors. Fortunately, today there are a number of technological solutions available that eliminate the need to choose between painful manual reviews or incredibly expensive discovery technology.
Technology has made the discovery process easier.
Consider a case requiring the review of 30,000 emails. As Logikcull co-founder and CEO Andy Wilson explained at the 2017 Clio Cloud Conference, under a traditional, manual approach to discovery, attorneys would click through those documents individually, at a rate of about $250 an hour and a total cost of almost $200,000.
Such expenses may be so high that clients simply refuse to pay for them. The resources needed to conduct the review would be so great that many firms just wouldn’t be able to handle it.
Tools like Logikcull, a cloud-based Instant Discovery software, automate thousands of steps that used to be done manually, from Bates Stamping to virus scanning.
Deduplication technology and smart filtering—such as limiting documents by date range or focusing in on only those containing specific keywords—could eliminate the need to review up to 95% of the 30,000 emails mentioned above. That would leave only 1,500 documents to evaluate.
Assuming an attorney reviews 50 documents an hour, that would bring the total bill to $7,500—savings of about $192,000.
Also, when the discovery is done in house, rather than through vendors, that means lower costs for the client and more billable hours for the law firm.
Clear process + the right technology = effective eDiscovery
With a clear discovery process and effective discovery tools, any legal professional can start mastering digital evidence, turning it from a potential burden into an advantage. To sum up:
- Think about discovery from the beginning. At the outset of a matter, consider what types of ESI you’ll need, and ensure it will be properly preserved.
- Ask for native documents. Reduce delays and data costs by requesting native documents rather than imaged versions.
- Invest in the right tools. Cloud-based Instant Discovery software can keep discovery costs from ballooning, making it manageable for firms of all sizes to handle large amounts of data.
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