Ediscovery Trends

The American Bar Association has created one of the ugliest charts I’ve seen that lists comparisons of document review software.  It’s difficult to compare the features of all these products, so this chart can be useful, but it could also do more harm than good.  Litigation support professionals know the value of the EDRM model, and this chart doesn’t really help you plan for litigation, but rather just react to it.  Nonetheless, it’s nice to have a side-by-side comparison of some of the various document review platforms.  The information in this chart appears to have been supplied by the lit support vendors, so take the info with a grain of salt.  There are a couple of review tools that I haven’t heard of before, so I’ll be looking into those a little more closely.

Incidentally, the ABA does have a nice little Legal Technology area that caters to experts and newcomers to the legal-tech community.

Often when you’re faced with a problem with your litigation support software, it’s tempting to blame the vendor, either the one who sold you the ediscovery software, or the one who provided the load file.  But before we play that game, remember that those vendors are there to serve you, so take advantage of them!

Load files, for example, come in many different shapes and sizes.  Summation load files in particular can be problematic, and every law firm handles Summation databases differently.  Be sure to specify to your vendor what fields you want included, how you will load full text, and how you want the images for your documents numbered.  Summation load files have changed over the years, and you can bet the vendor that provided the file to you is probably up on the latest litigation support technology, so be sure to ask them why they did things a certain way.

Concordance load files are relatively simple, with separate files for the images, metadata, and fulltext.  This makes problems relatively easy to troubleshoot.

The point is not that one document review platform is better than another, but rather that your ediscovery vendor is probably very familiar with the software that they provide load files for.  If you’re having trouble, be sure to ask them for help – most vendors will do almost anything to retain a client!

Here’s an interesting interview with Alice Burns regarding legal project management.  Litigation support jobs are certainly going to take on more of a project management role moving forward, as lawyers are willing to sacrifice a bit of control in order to practice law (and leave the details to legal support staff).

Alice Burns discusses her clinic entitled “Project Management for Litigation”, ediscovery and litigation support certifications, PMP credentials, the use of a Six Sigma framework in litigation management.  There’s also an interesting chart demonstrating the different roles that a project manager needs to play in the litigation support industry.  The chart also lays out different responsibilities for different roles on your team – what paralegals should be doing, what internal lit support should be doing, what should be outsourced to vendors, etc.

While the post doesn’t mention ediscovery specifically, it’s a good primer if you’re looking for some insight into the complexity of litigation in today’s world.

Ajilon and Fios are teaming up to create a new ediscovery services partnership.  They are to be a start to finish solution, though according to the EDRM, it looks like they don’t address digital forensic collection.  That’s the only complaint from me – litigation support costs can be reduced by combining document review services with more traditional litigation support services.

Forensic collection still needs to be addressed in this scenario.    While some litigants don’t have the need for a permanent solution and can address this on a case-by-case basis, in the long term a dedicated document management system will prove to save money.

Project management will be another important piece to the Ajilon/Fios offering.  Overall, this is smart play in this market and I expect to see more mergers of complementary services in the coming months.

I’m amazed when I hear the stories from document review attorneys.  If it’s not an “80 docs per hour” mandate, then I hear “but NONE of these documents are relevant”!  A little bit of litigation technology can go a long way, reducing your overall review costs and getting back to the legal issues at hand.

First, ask yourself what the scope of the ESI collection was.  Are you going to pay a contract attorney to review every document in your set?  Their time (and your money) is better spent if you prioritize dates, custodians, and filetypes first, so they’re not reviewing an entire mailbox full of calendar appointments before they know what’s relevant.

Early case assessment tools can be deployed to cut down on the overall review load.  The metadata extracted before the eDiscovery process is very critical in order to use early case assessment software.  Too many law firms go right to offshoring or outsourcing, which drastically impacts the quality of document coding.  Instead, ask your litigation support personnel about how you can save money and actually improve the quality of your coding at the same time!

When making a decision on whether or not to outsource an ediscovery job, there are many questions you may wish to ask yourself.

Accurately assessing the volume of ESI to be reviewed is crucial.  Can your litigation support team manage the workload and properly leverage your internal ediscovery solution?  What resources will opposing counsel be using?

After answering those questions, check out the EDRM model.  Where is your firm in this stage of litigation?  Are you in an early phase – forensically preserving and collecting documents, or are you looking for a solution to search and cull documents?  Maybe the overall volume of ESI is small and you’re looking to review documents, or ready to produce them to opposing counsel.

As the linked article says, there is usually a need for balance in ediscovery.  It’s important to stay on top of new technologies in litigation support software – this area is always changing and efficient vendors can emerge quickly.  Consult your legal team about their needs for each particular case so you are on the same page.

According to research done by TREC, keyword searches are largely ineffective at locating key documents.  Best practices include working with opposing counsel to identify key terms and dates.  Finding a proper date range can easily pare down the documents that you will eventually pay a contract attorney to review.

Coming up with good keywords is also a high priority when asking opposing counsel to search documents.  If your keyword list is too broad, you will return far too many documents (and possibly be seen as overly burdensome), and if your terms are too narrow, you’re not going to find that smoking gun you’re looking for.  Try to think of reasonable a minimum and maximum number of documents that would be acceptable to review, given the scope of the litigation you’re facing.

Don’t be afraid to go back to opposing counsel to modify your request for production of documents, but be sure to properly review the existing documents you have.  You don’t want to ask multiple times to expand the scope of production, so be patient with the document review process before doing anything drastic.  Of course, check in with your litigation support staff to see if there are any ways to more quickly and effectively search the documents you already have.

There is litigation support software for nearly every stage of litigation. Litigation software can help you identify, preserve, and collect important data. Legal software such as LAW or IPRO can also help you cull down these documents. Litigation support services provide a wide range of ways to review and code your electronic documents. Concordance and Summation are two of the top document review platforms today. Many of these software services are becoming web-based, so contract attorneys can review documents from anywhere in the world.

Welcome to Ediscovery Trends, a new blog discussing electronic discovery and litigation support.  This blog will review the latest trends in litigation support software, ediscovery, and document review platforms.   We will also discuss a few basics in digital forensics and electronic document collection, as both are an important part of any litigation strategy that involves ediscovery.

There are many other trends in ediscovery – feel free to email me any topic ideas you might have.  Litigation support is a growing field and should be an important aspect of any overall litigation strategy.  Many firms are now using document management software to monitor and review documents for responsiveness, so this is a topic which will be addressed as well.