In a typical matter, attorneys tend to focus on the analysis and review stage of the Electronic Discovery Reference Model (EDRM). But if much of the collected data in the review platform is unnecessary, insufficient, spoiled, or irrelevant then reviewers have just bought themselves a load of eDiscovery trouble. This is why attorneys need the earlier EDRM stages (information management, identification, collection and preservation) to work and to work well: so that only highly relevant and fully auditable data is sent to the formal review.
However, this degree of early eDiscovery has been difficult to accomplish. There are several factors contributing to the challenge including a lack of communication between IT and Legal, budget concerns, difficulty issuing large-scale legal holds, and the overwhelming task of searching through massive electronically stored information (ESI) for relevant data. Fortunately for the corporate eDiscovery process, there are ways to overcome these challenges. The result of this preparation will be a highly effective eDiscovery workflow along with huge cost savings downstream.
Building the Foundation
“End-to-end” is a common marketing phrase but all too often marketing materials selectively present later EDRM stages and ignore the foundation-building stages. A truly end-to-end eDiscovery process starts with early, fast and accurate search, collection and preservation. These are not throwaways or afterthoughts for the later review stage. They are crucial processes enabling timely, low risk, and cost-effective eDiscovery across the board. However, there is a sticking point for Legal: these crucial processes are in the realm of IT, and IT and Legal often struggle to communicate. But with eDiscovery risks and costs ratcheting up, attorneys must increasingly work with IT and involve themselves in these early eDiscovery phases.
These eDiscovery stages can no longer be a matter of Legal issuing ESI collection and preservation requests to IT and data custodians, largely divorcing itself from the challenges of searching multiple data volumes within a tight timeline. First of all there is the sheer size of the data universe that must be searched. Neither Legal nor IT should limit searches to email servers and home directories, tempting as that might be. All active data sources must be considered: local and remote network servers and storage, SAN and NAS devices, enterprise content management systems, archives, backup tape, and personal computers.
In the past, eDiscovery searches of this magnitude were burdensome and organizations could usually get relief from the judge. And certainly the proportional principle applies, and not all matters require such a large magnitude of data sources. But organizations must protect themselves against charges of inadequate eDiscovery by adopting the technology that gives them the level of ESI search they need.
The upshot is that Legal and IT must work together to build the eDiscovery foundation. Attorneys should never do the nuts and bolts of IT work. But they should be able to communicate eDiscovery strategies and requirements to IT, and IT should help by building a framework of good data retention policies and highly searchable ESI. Left-hand side eDiscovery technologies accomplish proactive data retention, collection and preservation, and even early case assessment (ECA). Any IT department who supports the litigation process on a regular basis should know about them and Legal should work closely with IT to understand how best to use them.
It’s All in the Process
The eDiscovery framework should also help to close critical gaps in the eDiscovery process. Gaps in the workflow lead to wasted money, time, and manpower; and heighten the risk of spoliation.
This movement towards a systemic eDiscovery process is hitting all stages of the EDRM. Systemic processes get a lot of press on the right-hand side of the EDRM where data is frequently loaded from one system into another. Vendors in this area are attempting to achieve systemic processes by creating single platforms to host data through early analysis to processing to review to production. However, the left-hand side of the EDRM has not received as much attention for process changes. Yet systemic process early on is as much a benefit as it is later – perhaps even more so. The better the corporation does at this baseline level, the more efficiently it will manage all of its matters.
To adopt this level of systemic process, begin by analyzing the corporate eDiscovery practice for time spent, level of risk, and resource usage. Build cross-functional teams of Legal and IT to define improvements to the process, and consider adding other stakeholders such as records managers and compliance officers. These teams are charged with searching out eDiscovery services and technology that will automate eDiscovery procedures from the very beginning of the process.
Engage a proactive approach to eDiscovery by adopting eDiscovery technology for early stages of the EDRM. Proactive eDiscovery starts with IT managing ESI for retention, visibility, and fast and thorough search through all kinds of data and storage devices. Proactive software at this level should build dynamic and searchable indexes of enterprise content. But even if the purchase is reactive – as many eDiscovery purchases still are – the technology will be a vast improvement over manual efforts. Of course, once the corporation has made a reactive purchase it can use the new technology to gradually build highly searchable ESI for subsequent matters.
Once this eDiscovery technology is in place, it should create dynamic indexes that can index by system metadata, full text or tagged concepts. The software should automatically discover data stored across multiple storage devices, including remote desktop environments. Legal can then search the indexes by a variety of queries and search types including advanced Boolean, logical groupings, proximity, concept-based and natural language searches. All relevant documents are then collected and preserved into a secure repository. Note that the same software should also be able to apply policy-driven actions on data for effective data retention policies. This aids Legal by compliantly deleting data that has reached the end of its lifetime – which eliminates vast amounts of outdated data without exposing the corporation to risk.
This technology approach is crucial to proactive data management and fast collection. The eDiscovery platform will manage ESI so that it remains visible and highly searchable, ready for any litigation or compliance query that comes along.
Building on the Foundation for True ECA
ECA traditionally occurs close to the review stage of the EDRM because it requires that data already be processed and loaded into the review system. This late timing is not because ECA is particularly effective then, but is due to the old glacial pace of eDiscovery and the lack of tools to accomplish ECA early on. And when ECA is a manual process – as it traditionally is – attorneys are looking at the data for the first time. They must frequently revise search terms as they locate new patterns, threads and users within the initial data set; making ECA a late-starting, time-consuming and expensive ordeal. Of course this defeats the purpose of ECA. The traditional process is a waste of time and resources, and is plagued by inaccurate results.
Given this level of cost and complexity, firms increasingly require eDiscovery technology tools focused on the ECA process. Successful ECA requires powerful and flexible software that quickly digs into data, analyzes it according to user queries, and presents it in a series of dynamic visuals and detailed reports for review and fine-tuning. eDiscovery software should enable Legal to immediately analyze data in-place – sometimes referred to as “in the wild” – without having to copy or move it first. If the reviewer tags the data as responsive, it is a simple matter to apply a legal hold and move or copy it to secure storage. The software should preserve both content and metadata, and audit all actions to prove chain of custody.
This level of early ECA enables attorneys to very quickly analyze even large initial data sets. Software-provided analysis tools help to make sense of this mass of information. The software can form threads, comparisons, relationships and statistics much faster than human reviewers could. Its user interface can include dynamic visuals, detailed reports and analysis management dashboards to accomplish early first-pass review of unwieldy amounts of discovered data. By accomplishing ECA near the beginning of the eDiscovery workflow, ECA achieves the place it always should have had in planning and strategy.
By moving Early Case Analysis to the Identification stage of the eDiscovery workflow, ECA
achieves the goal it always should have had in planning and strategy, while significantly
reducing downstream costs.
Modern eDiscovery demands are changing long-held corporate legal culture and processes. It is a shift that is being driven from federal regulations and from the bench, and puts teeth in new ways of doing eDiscovery. Although these demands are initially disruptive, the benefits to Legal are clear. When attorneys are working with late, inadequate or poorly protected data, all the trial skills in the world won’t help. The bench has lost all patience with scorched-earth litigation where poor eDiscovery is used as a weapon against opposing parties. Judges are coming down hard on ill-prepared eDiscovery responses and litigation attorneys are risking fees, sanctions, missed settlements and adverse judgments.
New eDiscovery technologies and processes work together to build a true end-to-end workflow and establish a solid eDiscovery foundation. By working in interdisciplinary teams and adopting early eDiscovery technologies, the corporation will enjoy a one-time fixed-cost solution with dramatically lower costs and risk from the entire eDiscovery process.
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