Legaltech News – September 12, 2017 – Brian Schrader, BIA
In today’s legal landscape, e-discovery has become an established industry. But while most legal professionals are now familiar with e-discovery, all too often it is still treated like a fire drill — a reactive response that is panicked and hurried.
Without a system in place to manage the entire e-discovery process (let alone the data), corporations end up starting from scratch each and every time a new litigation arises. While litigation can be unpredictable, the organization’s reaction and process don’t have to be.
Corporations already plan for other unpredictable events like disaster recoveries, so why is it that most corporations still don’t plan for e-discovery unless have they an immediate need for it? Especially when a reactive e-discovery process only leads to business disruption, greater risks and increased costs.
To effectively prepare for litigation, while saving time and controlling spend, the approach to e-discovery needs to shift to a standardized business process. Below are four steps for corporations who are ready to rethink their e-discovery approach:
Step 1: Create a discovery playbook
Let’s talk football for a second. Why do coaches always refer to a playbook when they make decisions about what to do next during game? It’s because creating plays from scratch, ingame, is not just difficult — it’s completely unrealistic. How are teams supposed to think two or three moves ahead of the opposing side if there isn’t a guide on what to do in certain scenarios?
A football analogy may be a tad clunky when talking about e-discovery, but just as teams have plays outlined for certain scenarios, so corporations should be prepared for different scenarios in litigation matters.
The first step to understanding and shifting e-discovery into a business process is to build a playbook. This plan should be a detailed guide, specific to the organization and one that works seamlessly alongside other business processes. This playbook will provide detailed steps and cover the Who, What, When, Where and Why for all electronic discovery components. It will answer questions like: How and where is data stored within the organization? How are legal holds handled? Who oversees targeted data collections? How will review be handled?
Once corporations have a discovery playbook in hand, timing of litigation matters will no longer throw a wrench into daily operations because decision-makers know the key players and roles, and everything has been proactively planned. Even better, the corporation can repeat and refine the same processes for future cases.
Step 2: Know when to use TAR (and when not to use it)
Technology-assisted review (TAR) is a great tool in the e-discovery arsenal. In just the past few years, it has become recognized for its ability to quickly identify relevant documents, which can save counsel significant expense in the manual review phase.
TAR 1.0, the original iteration of the technology, is being used for a variety of cases because of its ability to predictively code documents and better target review time. And the newer TAR 2.0 — with continuous active learning — builds on that, eliminating the need for an initial review set and a subject matter expert, and allowing rolling uploads of data.
As it is currently more readily available on review platforms, TAR 1.0 is a convenient option. But for corporations that need a more robust option, or expect multiple data uploads that may affect how the data is searched, the second iteration may be a better choice for maximum efficiency.
There are also times when TAR should not be used at all.
For example, neither TAR 1.0 nor TAR 2.0 handle all file types. TAR processes files such as Word documents and emails like a pro, but it can’t handle tables or graphics. That means most Excel spreadsheets are automatically out, especially if they are complex or have a lot of text. With TAR 1.0 specifically, if the case requirements change or other search terms should be incorporated, the system has to be retrained, which adds expense.
It’s important for businesses to consult with e-discovery experts about when to use TAR and when not to, before legal matters come up. And this advance consultation should be included in your discovery playbook, too. Then you will be able to determine, based on your case and data, whether or not TAR will be a worthwhile resource.
Step 3: Set a standard for first-round document review
As the Rand “Where the Money Goes” study has noted, about 73 percent of all corporate e-discovery costs are tied directly to manual review of documents. It’s no wonder that this is an area where everyone wants to save money. One key way to do that is to develop a standard for the way attorney document review is handled across all legal matters.
A review standard helps to save money by proactively establishing a threshold for additional review help, based on preset type of case or number of documents. Part of setting up a review standard also means establishing a designated team of the same review attorneys — either within the company or outsourced — to continuously handle this process.
Rather than deciding in the midst of a lawsuit to hire contract attorneys on a case-by-case basis, it’s better to use the same team to review your data each time. This more thought-out, systematic approach provides the crucial advantage of institutional knowledge, which helps reviewers to better understand what data makes sense and what doesn’t, ultimately reducing time and money.
Step 4: Take advantage of recycled work product
Another key step in the e-discovery business process is creating a secure central repository to access previously processed data and technical and attorney work product.
Contrary to common thought, a central location for hosted data doesn’t have to be a big expenditure, and reusing relevant work product can save money and time spent on attorney review. It can also ensure the review is more accurate and that privileged files stay privileged.
Recycling work product helps keep e-discovery from being an ad-hoc process with wasted time collecting and reviewing the same data from the same custodians. It should be included as part of your discovery playbook, because it’s a significant way to turn e-discovery into a standard business process.
The key to conquering the e-discovery fire drill, and the increased costs and risks that come with such fire drills, is to rethink and standardize your e-discovery process. Follow the steps above so your litigation team has the technology and processes to efficiently and effectively handle all e-discovery needs — correctly, every time.
Brian Schrader, Esq., is President of BIA (www.biaprotect.com), a leader in reliable, innovative and cost effective e-discovery services. With early career experience in information management, computer technology and the law, Brian co-founded BIA in 2002 and has since developed the firm’s reputation as an industry pioneer and a trusted partner for corporations and law firms around the world. He can be reached at firstname.lastname@example.org.
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Original article as published on Legaltech News.