Ediscovery Trends

Ediscovery disputes are becoming a contentious point for opposing parties.  Either defense counsel claims an ESI search is too broad, or plaintiff’s counsel complains about the timeliness of the response, and soon enough litigation slows to a crawl.  An Ediscovery mediator might be the solution.

Of course, for this plan to work, the mediator must possess a deep understand ESI and it’s role in the discovery process.  The mediator must set guidelines for ESI preservation, production, and timeliness of responses.  Sounds like a great idea – depending upon the scope of the case, of course!

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.

In email forensics, it’s important to realize the scope of the data that you are dealing with.  While I agree with some of this blog post on email collection, when important litigation is involved, a computer forensic expert is a must.

The main reason you do not want your internal IT admin exporting emails for you is that often the person who recovered the data will be called upon to testify before the court.  A certified computer forensics professional has the experience and proper methodology to refute claims (such as spoliation, for example) made by opposing counsel.  A reputable ediscovery or digital forensics shop should have certifications and the expertise to help plan the most efficient way to collect, cull, and review your documents.  Proper planning for litigation can ensure that you’re using resources wisely and not throwing good money after bad.

However, if your firm uses Exchange and is simply conducting some sort of internal investigation, then the DIY approach to data collection is probably just fine.  Make sure to know the limits of your IT staff though – data collection can be a long process and they may not have the resources to do the job as quickly as a dedicated forensics firm.

Here’s a short audio interview with Rob Fitzgerald of the Lorenzi Group.  He discusses the growing role of digital forensics in litigation.  E-discovery firms and forensic firms are consolidating services in order to better serve legal markets.  Many corporate clients are becoming more proactive with their use of internal document management software, reflecting their need to quickly and efficiently respond to litigation, investigation, and compliance requests.  This interview is a good quick overview of some current trends in forensics and e-discovery technology.

Bow Tie Law discusses an interesting case involving an ediscovery dispute.  Unfortunately, the plaintiffs made a motion to compel before even reviewing the defendant’s production.

What was agreed upon was that both parties would provide responsive custodian lists, and that emails between the parties would be produced.  The plaintiffs wanted hard drives imaged, network shares produced, and didn’t even bother to review the emails.  Of course, the cost of hiring a computer forensics expert is burdensome if the scope of the case does not warrant it.  I don’t know what was involved in this particular case, but not even glancing at the responsive documents is mildly embarrassing.

This case shows that ediscovery needs should be addressed far prior to the discovery process.  Unless document management software reduces the burden on producing parties, no firm should be required to go to such extreme lengths in litigation.

Was just reading the Clearwell Ediscovery blog and have to agree that the most significant rule of the new ediscovery pilot plan is one that creates an ediscovery liaison.  This pilot program is only being tested in the Seventh Circuit Court, but is an important milestone for the progress of electronic discovery. Often in litigation, the scope of preservation and other requests are far too burdensome.  Document management software is a requirement for any business that is likely to be involved in litigation.

Of course a company like Clearwell provides software that makes it easy to quickly cull and preserve responsive documents.  Their software provides excellent document management during the course of litigation.  Their search technology allows document review costs to be reduced drastically, so document review software can be used more effectively.

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.

Electronic Discovery and Litigation Support are increasingly important aspects to law firms.  Computer forensics becomes an issue that can make or break a case.  By streamlining the document management process in preparation for litigation, firms are able to save money by taking ediscovery software in-house.

Because ediscovery costs continue to rise, many law firms are able to take advantage of litigation software as more than just a document management system, but also as a potential avenue for revenue.  Litigation support software helps lawyers find relevant information quickly so they can continue to practice law rather than review documents.

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.