What Was Old is New Again

By | 05/21/2012

discovery management, eDiscovery, document review, litigationLegal review is the largest cost component of a discovery management project.  Corporations understand that this is part of the new eDiscovery world and want this cost to decrease – – Makes sense and is totally logical. 

There have been countless panels, articles, blogs, advertisements, and debates around how this can be achieved using software alone, stating that its use is the only method that can ultimately lower the document review costs in litigation. 

If this were true, then how data is collected, processed and culled before it gets to that point would be a waste of time.  Of course we know this not to be true and there needs to be a re-direction of the discussion surrounding this topic.

The management and review of data sets is in fact intertwined to a point that software alone cannot provide the only outcome to achieve reduced costs.  It is process that will get you to the point of lower costs.  Call it early case assessment or “predictive coding”, but it all boils down to an entire ediscovery process that involves focusing in on what is important and what is not important for further review by a legal team.  This is not a new approach.  It has been in use for years (and software is a part of the process)!
What is included in a sound and defensible process to lower costs? I have broken it down to four steps.

  1. A thorough and targeted collection of the data.  Develop a strategy that includes the data management experts at the corporate level to assist in identifying where pertinent and relevant data exists.  Create a roadmap.  This will reduce the amount of data that is collected and will ultimately lower the ESI processing and review costs.  If additional collections are required, then with proper methodology and the roadmap, that data can be collected at a later point.  Data collection is typically the least costly component of a project so why not spend some time at this level and understand the data sets further.
  2. ESI processing of the collected data.  Simply put,
    • The completeness of the processing affects the accuracy of the data.
    • The accuracy of the data affects the quality of the review.
    • The quality of the review can affect the outcome of the case.
  3. Culling and filtering the processed data.  Utilizing technology that can reduce the data even further by one or two experts at search can drastically reduce the size of what needs to be reviewed by teams of reviewers at the next stage of review.  This early case assessment approach includes thoughtful approaches to structuring and executing a search through the use of keyword and conceptual search methods.  Validating this approach through random sampling and detailed reporting will provide an opportunity to test the data and ultimately reduce the review set even further.  Again, this important part of the ediscovery process lowers the costs to a client by having less labor costs and data to be reviewed at the next stage of the process.
  4. Review.  Now that the data sets have been reduced by a targeted collection, processed completely, and culled to a smaller set, the review size will be more manageable for the legal team.  Utilizing proven review software will provide a smaller team of lawyers the ability to analyze and review the data sets through the use of keyword and conceptual search and then have the ability to sample and validate their results with detailed reports as part of their defensible workflow.

There needs to be more discussion surrounding this topic and the hope is that the courts and corporations will begin to focus more on the necessity of the entire process and not software alone to solve the litigation cost concerns.