How to Conduct eDiscovery—for Law Firms

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You may know it as eDiscovery—the exchange of electronic information between parties during litigation and investigations. Today, eDiscovery for law firms is becoming commonplace, and legal professionals who haven’t handled significant amounts of data in the past are adapting to new digital processes.

The right technology can make a big difference for your team, but so can a straightforward process. So, when it comes to your eDiscovery 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 effective eDiscovery for law firms.

A note on the EDRM

The Electronic Discovery Reference Model, or EDRM, is a common starting point for putting together an effective eDiscovery process. The EDRM lays out the eDiscovery process from identification and preservation through processing, review, and analysis 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 (“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 pertinent to the case.
  • Production: Produce ESI for others in a usable format.
  • Presentation: Present ESI at hearings, depositions, or wherever you need.

Familiarizing yourself with the EDRM when structuring your eDiscovery process is a great starting point. However, it’s also worth considering specific tactics to help you achieve your goals at each stage.

Our discussions with Crockett and Wilson focused on what the eDiscovery 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 helpful

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 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.

Gathering data for the eDiscovery process

Here are a few tips for setting up a streamlined process when 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 eDiscovery process will take place during the review. Therefore, it’s essential to have your review platform and process in mind from the get-go.

When creating requests, Wilson also customizes the request to the review platform. “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. It 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 the defendant should produce its old Telex records.”

Pile of binders with documents

Conducting the review

Begin with the end in mind

When setting up the review process, start by working backward. This way, you’ll know exactly what you’re looking for. You’ll also 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 disputed facts, you should key your searches and tags to those issues.

Tip: Save yourself time and effort by testing your searches at the outset to ensure 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-chefs 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 you can cull out. These could be spam, personal documents, file types with no content—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 eDiscovery for law firms

When it comes to eDiscovery for law firms, using Ctrl+F to find what you need won’t cut it. However, the process also shouldn’t require break-the-bank technologies and vendors. Fortunately,  many technological solutions available today eliminate the need to choose between painful manual reviews or incredibly expensive discovery technology.

Technology has made the eDiscovery process easier for law firms

For example, with Clio’s integration partner, Logikcull, you can reduce the time and cost of eDiscovery by 90% through automation (from Bates Stamping to virus scanning).

Consider a case requiring the review of 30,000 emails. Under a traditional, manual approach to discovery, attorneys would click through those documents individually. At a rate of $250 an hour, the cost of reviewing these documents will grow exponentially.

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 couldn’t handle it.

eDiscovery automation, including deduplication technology and smart filtering—such as limiting documents by date range or focusing 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—and a much more palatable bill for the client.

Lawyer completing simplified eDiscovery process

Clear process and the right technology means effective eDiscovery for law firms

With a clear eDiscovery 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.

Ready to streamline your law firm’s eDiscovery process? Learn more about Clio’s Logikcull integration and start saving countless hours on eDiscovery—all while passing on lower costs to your clients. 

Categorized in: Technology

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