When it comes to eDiscovery, most attorneys complain about large volumes of data and the high costs associated with compliance. But yet, the industry generally continues to undertake the eDiscovery process using the same technologies and methods. The definition of insanity is using the same approach over and over again, expecting different and better results. This definition applies to the eDiscovery process as well.
“It is very important to both combine the best of human performance and analysis with the strategic use of technology.”
Most attorneys seek out new tools to solve their eDiscovery pain out of desperation. Perhaps they have received “the discovery order of all discovery orders,” and compliance seems impossible. Or the cost to conduct discovery in their tried and true way could outweigh the value of a case.
Unfortunately, attorneys typically look for a “magic wand” to solve these challenges – such as the latest new technology that promises to have the entire process figured out. By itself, technology is not enough. Lawyers need to understand that successful eDiscovery is a combination of three elements: technology, people and process.
By using a smaller team of attorneys, the analysis of the documents comprising the seed set can be controlled more carefully to ensure their accuracy. By using document review specialists or review managers, rather than a large team of contract attorneys, patterns can be quickly identified, understood, and adapted into the coding of the seed set and the identification of any additional seed documents that may need to be found and utilized.
Service providers in the eDiscovery field generally align with one of two approaches: provider of commodity services or consultants. Commodity service providers follow the direction of the legal team and make minimal attempts to advise or improve the process. Service providers focused on consultation offer the same commodity services, but they are dedicated to discovering smarter and more efficiently.
Since eDiscovery is already expensive, many attorneys hesitate to utilize the option of engaging a consultative service provider. This approach is short sighted. Consultative service providers improve the process and can deliver significant value. Attorneys are used to engaging consultants for other areas requiring expertise. The same approach should apply to the eDiscovery process. How can consultants help attorneys get more for less in eDiscovery?
A good consultant can appropriately scope a data-analysis exercise, including proper and efficient data preservation techniques and forensic analysis. In a matter of hours, powerful tools can be generated that facilitate efficient discovery of recent activities performed on various devices. Such reports identify information such as recent Skype logs, websites visited and internet searches performed. This type of analysis can be a cost-efficient way to assess a client’s risks and determine the most appropriate course of action. This type of data analysis is particularly helpful in matters involving trade secrets and internal investigations.
For almost two decades, the culling of massive data sets into more manageable numbers has been a widely adopted practice in our industry. Interestingly, the effectiveness of this process is rarely evaluated or measured by means other than simply tracking the percentage of data that is culled out. The data culling process produces results that are only as good as the time and effort that goes into their development.
Effective data culling should be an iterative process – involving several individuals who provide insight into the key terms that are likely to identify relevant information in a matter. Those key terms are then tested and modified for validity. Some proposed key terms are abandoned and other terms are added until acceptable validity is achieved. Key terms generally evolve into highly effective search strings.
Few attorneys are as adept at the search term development process as a good search consultant. In fact, many search consultants are also linguists. Search consultants evaluate search terms and generate initial reports before they meet with attorneys. They come to an initial consult armed with questions and recommendations based on their initial assessment.
Investing in several hours with a search consultant up front pays tremendous dividends throughout an eDiscovery project. Typical results include much less data to review, identification of the most relevant data earlier in the process and significantly lower total project cost. A good search consultant also provides a defensibility report covering the development of the search terms, which provides extra protection should the process ever be questioned.
When entering the document review phase of discovery, there are still many effective approaches to increase efficiencies, lower cost, and focus on more relevant documents.
Essentially, there are 5 P’s to focus on that can provide the “doing more for less” scenario: People, Process, Platform/ Technology, Protocol and Population of Documents.
On the people side, it is important to remember that many of the document reviewers for 1st pass review tend to be contract attorneys who either once were practicing law or have not had the opportunity to fulfill a once aspiring legal career. Providing a positive culture and bonus incentives based on their productivity/accuracy will lead to tremendous efficiencies. Also, making sure the team has certain skill sets for document review and are trained on the processes and technology will drive better results. Finally, the use of a consistent team and review company will lead to knowledge transfer and consistency. A low hourly rate, usually comes out of the contract attorney’s pockets and leads to negative morale.
Establishing a repeatable, defensible process while have the flexibility for customized workflows on your case will also lead to efficiencies. Each case should have a default QC Process that includes various levels of quality control including batch QC, targeted searches and validation. Workflows should be case specific and will be built on case insight through initial ECA (Early Case Assessment), Sampling, initial protocol consultation and getting into the review. Although the workflow is custom, the process behind it ensures uniform results in quality and consistency that allows for a more productive and accurate ability. This process also leads to the review of more targeted documents and can lead to the removal of non-relevant ones.
It is important prior to the beginning of a document review to develop a focused, production-oriented protocol in conjunction with a corresponding coding panel. Many times, the protocol is not well defined and there are too many non-important issues on the coding forms that slows down the process and adds to the review of non-relevant documents. The ultimate focus should be on the review and quality control efforts toward the real interests and goals of the case. This will add to more defensibility, less document overturns, substantial compliance, and that both critical and relevant case information will be communicated back to the case team and client.
Having a good understanding of the population of documents prior to review not only helps identify potential problem documents, but allows the document review provider to allocate the appropriate resources and workflows to create efficiencies in the review process. This knowledge and understanding of the documents will help develop a process that minimizes errors, provides focus on potential key and/or problematic documents, and provides insight into how the overall review will perform.
Intelligent use of platforms and other technology comes both prior and during the review process. There are great tools out there prior to human review to minimize the amount of non-relevant data that gets looked at. Such tools for ECA, Investigative Analytics, Language Based Analytics, Sentiment Analysis, Visualization, Social Network and Communication, email threading, near duplicate analysis and Predictive Coding will assist you in a achieving a much more targeted review. Also, when selecting a review platform, it is important to note that not all platforms and technology are created equal and not all providers have the ability to customize and adapt the technology to provide increased efficiencies to review less.
Technology Assisted Review (TAR) and Predictive Coding will ultimately reduce review time, save you enormous amounts of money and organizes key discovery to support your case. Ultimately, this will give you a tighter focus on the merits of the matter. It is very important to both combine the best of human performance and analysis with the strategic use of technology. Algorithims or Language Based Rules are designed to minimize repetitive tasks and apply their rules to reach a statistically valid conclusion on responsiveness and issues and apply to large amounts of data. The newest TAR methodology centers around Active Learning. Every document call made by a reviewer to an ambiguous document teaches the system how to better identify relevant vs. non-relevant documents. Continuous re-sampling during the document review combined with machine learning increases accuracy to minimize eyes-on review. Ultimately, you can save around 50-75% of your linear review costs while rapidly and accurately coding large volumes of documents in a much shorter period of time.
The more of the 5 P’s that you can control the more targeted your review will be and will increase efficiencies, quality while lowering your overall cost significantly.