Discovery was once a relatively straightforward process. Interrogatories, document exchanges and depositions took place based on information found in accordion files or banker boxes. There were exceptions, of course, and some cases required sifting through a warehouse of documents, but the process was still fairly simple. Once the age of ubiquitous corporate computing and electronically stored information appeared, however, electronic discovery (e-discovery) became anything but straightforward. Electronically stored information became so easy to create that the sheer number of electronic documents began to far outweigh the number of physical documents that were ever created. As a result, e-discovery has typically been complicated, voluminous and, at times, downright difficult.
E-discovery requires a fair amount of technology to combat the complications electronic data has introduced. Time saving techniques such as optical character recognition, culling, similarity analysis, email threading and technology assisted review have greatly reduced the burdens inherent with e-discovery. These modern tools have helped us navigate millions of virtual documents accessed by inside counsel and outside counsel alike. Such techniques have started to make the process manageable again. There are so many choices in e-discovery tools and techniques, however, that it is often difficult to navigate the waters of modern e-discovery software.
Data preservation and collection
There are a number of mature software packages which focus on data preservation and collection. Depending on your environment’s network architecture, data can be collected in a central location from email and document sources. It is important to evaluate your particular organization’s needs, but it is best to select software which can be run by an internal security or e-discovery group and supported by the company’s IT department. Investigate software titles which support unattended collections and full chain of custody options.
Early case assessment
Once data has been properly preserved and collected, it is often advantageous to cull the data down to a more reasonable size for eventual review. The fewer documents you have to review, the less time and money the e-discovery process will take. While data culling can sometimes be achieved at the time of collection itself, early case assessment software (ECA) can help remove extraneous files such as system files, emails past date range or documents that do not contain certain keywords. Consider ECA software or services which are Web-based and accessible to outside counsel to assist in the culling process. It is not necessary to own ECA software outright, as long as you can find a trusted service provider to host your data and provide a solid ECA platform for you to use.
Document review platforms
After the ECA process, document review needs to begin in earnest. Reviewing files for responsiveness, privilege or categorization around certain causes of action will often be performed by a mix of inside and outside counsel. In today’s modern age of being “always on” and available over the internet, it is best to work with document review technology which is Web-based and accessible wherever work takes you. A Web-based solution will allow you to access your e-discovery system whether you are in the office, on the road or visiting your outside counsel’s headquarters. Look for systems which support a variety of Internet browsers and platforms, such as smartphones, tablets and Mac computers. It is likely that you will need to access your e-discovery technology when you only have mobile or home computing access, and a Web based solution will give you options. Again, it is not necessary to own your own document review system as long as you are hosting such a platform with a trusted service provider.
Technology assisted review
Human-led document review is often one of the largest costs surrounding e-discovery. Due to the large volume of documents involved during document review and the relatively high cost of human reviewers, it is clear that any technology which can reduce the number of human reviewers can provide a substantial cost savings. Technology assisted review (TAR) is software which enables a small team of human reviewers to review select documents, which are in turn used to train a computer application with “machine learning” algorithms to review all remaining documents automatically. Although met with early skepticism, TAR has become a court-tested and highly reliable alternative to human-led document review. TAR systems are often integrated directly into modern document review systems, which allows for an easy transition from TAR to human-led review and back again.
Unified e-discovery platforms
Early case assessment tools, document review platforms and technology assisted review have certainly improved the process of managing e-discovery data. One weakness, though, has been that each of these technologies was traditionally deployed with individual software packages. Data needed to be shifted from one software package to the next. It is best to work with e-discovery software, which offers all of these various technologies in a single, contiguous platform. By using just one platform you benefit from economies of scale, consistency of user interface and the ability to track security and data access throughout the process. Unfortunately, few technologies offer a truly unified e-discovery experience, so it is best to inquire with your technology department or outside service provider as to whether your technology platform is compliant.
Discovery, e-discovery in particular, can be a complicated and expensive part of any litigation. Technology has been developed to reduce these complexities and bring efficiencies back into the process. Tools which specialize in data preservation and collection, early case assessment, document review and technology assisted review have not only made e-discovery more manageable, but also far more cost effective than it was just five years ago. And while all of these technologies have become invaluable, managing and learning multiple, individual software packages can create its own inefficiencies. Consider a unified e-discovery platform which contains all, or many, of these functions to gain the most benefits in overall cost and efficiency.