Ediscovery Trends

In the process of litigation, it is sometimes necessary to conduct a full-scale document review.  Your litigation support vendor probably has a few ideas on how to approach such a large project, but the sticker shock can be a bit overwhelming.  Let’s look at what you’re really getting into when you need to budget for a document review project.

The first thing to look at is how many total documents you have, and what your resources are expected to be.  If you have ten million responsive documents and an unlimited budget, then you can afford to pay attorneys to review them all by hand.  But if you only want the documents that are most relevant to your litigation, I’d recommend culling the data set through an advanced search platform.

While the upfront cost for some vendors like Clearwell or Kazeon may be high, the long-term savings are there, especially for large projects.  You don’t need to hire 20 attorneys to sit in a room for months reviewing documents – not only can you reduce the overall volume of responsive documents, but you can also classify them much more efficiently than was previously possible.

After your data set is culled down, you’ll want to look at a review tool that can handle what you want to do with these electronic documents.  If it is a small case, you may wish to review them locally, but if it’s a large case involving multiple law firms, you will need to make sure that the documents can be securely accessed online.

I’ll offer more tips on effective document review sometime next week.

Found an interesting post on the topic of knowledge management and records management.  The post makes the point that if you want to know where ediscovery is going, you have to look at how knowledge management functions.  All those cutting edge, collaborative tools like wikis, instant messaging, intranets, etc. is tomorrow’s ediscovery.  How are you going to organize a document review around a wiki?  Are you going to track when each change was made, and when each page was accessed?  Are you going to be able to pull old versions of an internal blog to look for hints of inside information in the comments?

Most ediscovery review tools are focused on static documents – email, spreadsheets, PDFs.  But in businesses where knowledge and collaboration are critical to success, answering the “which party knew what information, and when” questions will be important to maintaining an aggressive stance when faced with the possibility of litigation.

Can good Ediscovery Tools reduce legal costs?  Of course they can!  The strange thing is, you may not seem like you’re paying $18K per gig (the Gartner report’s estimated cost for document review), but you probably are.  This is why it makes sense to control litigation costs at every step of the process.

The first thing to know is that you want as few potentially responsive documents as possible loaded into your document review software (Concordance, Summation, or iConect for example).  Before you even use those ediscovery tools, consider culling with a search tool that was designed to do a more in-depth analysis, such as Clearwell, Attenex, or kCura.  This way you’re not wasting resources by keeping a small army of document coders, but instead you’re reducing litigation costs by limiting the documents your coders need to review.

Litigation support vendors have been using these kinds of software platforms for years.  Don’t be afraid to change your ediscovery strategy, it very well could save you money in the long term!

Clearwell has a post (though not on their own blog), outlining what they project to be the top five ediscovery trends of 2010.

The first is a focus on early case assessment.  Right now, smaller ediscovery vendors benefit from law firms’ lack of ECA tools.  Once the ESI is collected, firms are going to want to know right away what they have, and whether this data will lead to future litigation.  If a litigation support vendor controls this data and has access to a powerful search tool such as Kazeon or Clearwell, this can be done quickly and accurately.

Another imp ortant trend is the growing role that project managers will take on litigation.  While lawyers may like to think they know every aspect of a case, the reality is that a good project manager should be able to keep track of what stage litigation is in from an EDRM perspective.  Litigation support services and lawyers are going to need to open the channels of communication to effectively manage this vast amount of data and find the needle in the haystack.

We’re not at the point where one ediscovery platform can effectively manage every aspect of litigation.  There is still a need for forensic collection, culling, and document review.  Currently, there is no litigation software that can handle all of this.  However, vendors are able of offer multiple software solutions to fit their clients’ needs.  If the amount of ESI collected is small, a vendor can move it to a document review platform right away.  For larger collections, a vendor can offer a culling tool.  If the data collection itself may become a point of contention, ediscovery vendors will need to employ forensic experts willing to testify before the court.

This last point is especially important when it comes to implementing data from social networking sites into litigation.  Facebook and Twitter data is difficult to locate on most hard drives, and care should be taken when it comes to extracting this data.  Forensic collection becomes more than just an afterthought in the process.

Litigation support vendors will continue to evolve to meet the needs of clients in 2010.  Ediscovery and forensics firms will continue to merge and build symbiotic relationships.

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!

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.