Ediscovery Trends

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!

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!

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.

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!

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.

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.