Technology is just another tool to be used by lawyers. But it is an extremely important and valuable tool when joined with People and Processes to form a cohesive strategy. People, Processes and Technology are all equal players in eDiscovery. Like all other tools however, technology must be deployed in a timely manner and with some forethought in order to get the most value for the intended goal.
It is a well-accepted fact that today’s litigation involves increasing volumes of documents and data, and that the introduction of technology to manage, search and understand the contents of that data is required. But there are two interrelated decisions regarding technology that must be made: what technology to use and when to deploy it. Today’s focus is on the timing of technology because you get the most value by starting early, engaging with your technology team at the start of a case in order to streamline Data Collection, Early Data/Case Assessment and Review.
Why is Timing Important?
There are several reasons why the consideration of when you engage technology is so important:
- A disorganized document collection causes ongoing problems with tracking, consistency and understanding.
- A bad collection will likely cost you more money because you end up revisiting original document sources trying to determine what you have missed.
- If technology is deployed later in the case, the advantages of technology are necessarily more limited in their usefulness.
- Technology tools allow you to create organization and deep understanding of your case earlier in the process, which means that informed decisions about where to focus your attention are more directed.
- Trying to review a large document population is virtually impossible without the technological capabilities to parse, search and segment the data into subsets that are related and therefore easier to understand. The earlier the technology is deployed, the more useful it will be to the litigation.
What Does Technology Bring to the Party?
It is impossible to review or touch every document in a population. In fact, not even the courts expect perfection in document review. What they are looking for are repeatable, organized attempts to provide the best document review possible. Using technology allows you to track each and every step that was taken, and provide verifiable results to the opposition.
Technology creates extreme efficiency when dealing with large data volumes. In the end, we all know that most cases turn on the contents of only a few dozen documents that are used to force a beneficial settlement or be presented in court. Technology tools allow you to reduce the data set by culling documents and setting them aside, reorganizing them into subsets that make sense and tell a story and allow the attorneys to make adjustments on the fly, revisiting data in order to respond to new information. Deduplication settings and email threading can immediately reduce the document populations by 20-50%, that need to be further researched.
A complete eDiscovery platform will have built in analytics tools that provide even further methods of revealing information from a collection of data. Document clustering by themes and keywords allows users to quickly draw conclusions about sets of related documents and create visualizations that tell a story. Social graphing allows users to track email “conversations” between key players and focus on the exchange of data.
So Why is the “When” Important?
The “when” matters because to get the most data reduction, analytic tools work best when all the data is in a single location, rather than in a series of partial databases, with no obvious relationships. While your goal should be to collect as much as might be relevant during the first document collection, again there is no practical way to reach 100%. But the closer you are to this during the first collection, the better off your ability to get to the core of the documents quickly.
Practical Tips for Planning Data Collection
Here are some practical tips to assist in the planning and data gathering process, to get you to the most likely relevant documents as soon as possible:
- The litigation team needs to get together to meet and discuss a collection strategy that makes sense. You don’t want to over collect data; you want to collect strategically based on your needs.
- Data mapping. While this sound like an old fashioned concept, it is extremely import that you have a clear idea of the data types, location and responsible stakeholders for each type of data. Having this knowledge before you need it, saves valuable time and avoids over and under production.
- For each litigation matter, review the data mapping information and determine which employees and custodians are relevant to the current litigation.
- Make sure that you have a litigation hold process in place and ready to deploy, before you need it. Conduct periodic reviews with all stakeholders so everyone is aware of what their responsibilities are when a litigation hold is issued.
- Meet early and often with your technology team to address any concerns and make sure that procedures are in place to handle data. Also meet with your document review team so they will be ready to start when needed, with full background information.
- Rather than deploying a standard discovery stipulation, make sure it is customized to meet the conditions of the current case. While the majority of cases follow a pattern of requirements, each litigation matter is unique so you want to be sure that no important details are overlooked.
- Strongly consider a discovery stipulation specifically tailored to this case. It is ok to start with something boilerplate, but also think about what makes this matter unique.
- Does the technology you are using change any standard considerations?
- You want to avoid agreeing to items that cannot be achieved and will cause you problems with the opposition later.
- Based on the new FRCP Rules for cooperation with the opposition, preparations for the Meet and Confer and the new requirements regarding “reasonableness”. Plan to meet with the opposition and be prepared to share information about data gathering, data volume and custodians, negotiating what you think is reasonable for all parties.
Planning, planning, planning. While it is often hard to devote the time needed to meet, since people equate meeting with inaction, having a strategy that is clear to everyone will help avoid many pitfalls later down the road. The team needs to understand what is in your data collection before making decisions about how to use your technology or how to design your review workflow. Resist the impulse to get started immediately with doing a review before the team has spent any time discovering what is in the database and how it can be reduced before the review starts.
To the extent possible, make your first round of collections as complete as possible, so that the technology tools can be deployed most effectively. Taking the time to perform early data assessment will dramatically reduce your data volume so that your document review can be more focused and efficient.