New advances in technology have now made the e-discovery process non-linear and more flexible, faster and more cost efficient. Traditionally, e-discovery has been conducted as a linear process: 1. Identify relevant potential evidence; 2. Preserve; 3. Collect; 4. Process; 5. Review and analyze; and 6. Produce and present (see the Electronic Discovery Reference Model (EDRM) framework at edrm.net for details).
The EDRM framework was never intended to be a linear process but limitations in technology in the past prevented it from being more flexible and cost effective. Taking a linear approach because of technology limitations made e-discovery both expensive and time consuming because all steps had to be essentially completed in sequential order and usually outsourced to third-party service providers at a per gigabyte price.
Technology has always been the lynchpin to advances in e-discovery. New technology now allows e-discovery to be less linear and more flexible and efficient, thereby saving money and time needed to get to the relevant evidence. For example, searching and culling through the evidence by using a variety of methods including Boolean and keywords--a function that normally had been done at the processing and review stage--can now be done early in the EDRM process as part of the identification and preservation stage, dramatically reducing the amount of evidence that is preserved and processed.
What is really exciting is seeing the introduction of so called pre-collection analytic technology, which allows an attorney to perform an early case assessment at the identification stage, instead of after collection during processing.
With the capability to reach out and assess electronically stored information (ESI) before collection, attorneys can effectively narrow the scope of the legal hold to minimize business disruption and essentially collect, preserve and process the ESI at the same time. E-discovery that normally takes weeks or even months can now, in many cases, be done in a matter of days. Courts now consider the concept of sampling to test cost and yield of searches part of the mainstream approach to e-discovery. [SEC v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009)]
For example, an organization can now run pre-collection keyword searches on a sample pre-collection dataset and immediately get a list of not only how many documents are responsive but how many unique documents are responsive to a particular search term. This is a very powerful capability for negotiating keywords and deciding on the scope of the preservation and collection.
This trend is supported by a 2007 Cogent LexisNexis(R) Research study on Early Case Assessment that identified the benefits of getting on top of the evidence early at the identification stage of the EDRM. The study concluded that having a real proactive capability early in the EDRM process results in favorable outcomes in 76 percent of cases, reduced litigation costs in 50 percent of cases. Finally, 87 percent of respondents said early case assessment is beneficial for determining the best way to proceed with a case.
Getting on top of the evidence earlier provides real strategic benefits:
- Narrows the scope of the litigation hold and discovery in general
- Early risk identification and mitigation
- Reduced litigation costs and expenses
- Reduces the "claim-through-resolution" cycle time
- Early evaluation of potential end-game strategy i.e. alternative dispute resolution
- Educate client early regarding case weaknesses and strengths
With judges becoming less tolerant of mistakes made during e-discovery, taking a more proactive approach early in the process is something all companies should be doing to both manage risk and get on top of the evidence early.