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4 Ways to Be Proactive in the E-Discovery Process

Created on May 24, 2019

E-Discovery Market Analyst at Exterro

Civil litigation—especially for the defense—often feels like a purely reactive process, a series of responses to an opposing party’s actions. But in reality, it shouldn’t be—especially for organizations who have the resources to have a dedicated legal department and technology to support its members.

Of course, the costs of a reactive posture fall most seriously on the members of the legal team scrambling to get work done under tight deadlines: issuing legal holds and tracking compliance; preserving data from myriad sources from mobile devices to laptops to cloud platforms; and reviewing terabytes of data for responsiveness and privilege.

To manage the e-discovery process, practitioners—particularly the paralegals conducting many of these day-to-day tasks—can and should take proactive steps to help avoid major crises as well as everyday miscommunications and mistakes.

Here are four ways litigation support teams can get out in front of the challenges that often show up for an e-discovery team during litigation.

1. Know your technology.

Technology—legal hold software, review platforms, project management tools—exists to support teams at every step of the e-discovery process. But of course, technology augments the efficiency of teams; it can’t make up for processes that aren’t defensible. Having technology in place—and knowing how to use it—allows teams to get in front of potential problem spots like limiting the amount of documents for external review, effectively tracking legal holds, managing multiple matters at once, or attempting to defensibly delete data.

But getting the most out of your tools requires training. Artificial intelligence review tools can be both more accurate and less expensive than human reviewers but require skilled users. Ralph Losey explains, “To leverage this technology properly, we’ve got to have advanced, trained e-discovery lawyers that know how to use the technology—and then it’ll go beyond hype into incredible results and cost savings for clients.” To make sure you're caught up on the latest e-discovery technologies, download Exterro's recent white papers, E-Discovery Technology at a Glance: Artificial Intelligence and E-Discovery Technology at a Glance: Cloud E-Discovery Software.

2. Know your ESI landscape.

One of the biggest challenges is understanding where all potentially responsive data may reside so teams can take steps to preserve it once there’s a reasonable expectation of litigation. After all, the days of collecting only email and hard drive data are long gone. Today, teams must have a thorough understanding of their company's ever-evolving IT infrastructure in order to accurately target data for collection. With emerging technologies such as cloud-based platforms and social media applications and widespread adoption of BYOD policies, teams have to consider more data sources than ever before to effectively manage discovery. For help making sure that you've got a firm grasp on both your technology and your ESI landscape, make use of Exterro's IT Infrastructure Playbook.

3. Plan for the custodian interview process.

When conducting custodian interviews, questions pertaining to the location of potentially responsive data should remain consistent to ensure a sound audit trail. At the same time, there are certain custodians who may require further probing or hand-holding to ensure the answers they have provided are accurate. 

An example might be custodians who may not be as experienced with new technologies may not be entirely sure of the specific location where they are saving their data. In these instances, it may prove beneficial to sit with the custodian and walk through the process they've used to preserve data. Fortunately, legal teams can use interview templates and workflows to understand in advance what questions they need to ask to stay on the right side of the FRCP. Check out our custodian interview template for a good starting point.

 4. Use early case assessment All document review platforms provide standard searching capabilities, with some offering more analytical features for identifying responsive data. Now there are review platforms that include Early Case Assessment features which allow users the ability to analyze data as it resides on the server, instead of requiring collection first. This provides benefits across the EDRM, such as:

·    Finding relevant data faster

·    Reducing storage costs and risks

·    Increasing transparency into budgets

·    Setting case strategy earlier 

If you're not sure where to start with early case assessment, you're not alone. Download our Beginner's Guide to Early Case Assessment to learn the fundamentals. 

Certainly there will still be times when litigation support teams get caught scrambling; it’s the nature of litigation. However, by taking these steps, you can minimize the amount of time that happens and ensure that more often than not, you’re able to focus on the strategic, high-value issues rather than the administrative tasks that make up e-discovery.