4 Ways to Be Proactive in the E-Discovery Process

by Exterro, Inc.

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 Comprehensive Guide to New E-Discovery Technology.

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 a deeper dive into issues around preserving and collecting new data types, check out our on-demand webcast on the topic with three e-discovery experts.

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 e-discovery budgets

·       Setting case strategy earlier in the litigation cycle

If you're not convinced about its merits, this on-demand webcast from our new technology webcast series makes a compelling case for early case assessment.

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.

[View source.]

Written by:

Exterro, Inc.

Exterro, Inc. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.