Common mistakes in eDiscovery and how to avoid them

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eDiscovery mistakes made during an investigation can add unnecessary delay, cost and, at worst, impact the quality and nature of evidence available. With the right knowledge and planning, these mistakes can be easily avoided

Not involving experts early enough during data collection

Problems during data collection can occur when a company’s IT team and eDiscovery experts are not involved early on to map out the potential data sources for an investigation and to discuss an appropriate data preservation and collection methodology.

Determining a data preservation strategy early on will prevent the loss of potentially relevant information through data deletion, including through the operation of routine data retention policies.

An early data scoping exercise will prevent the ad hoc provision of data for review, such as employees forwarding relevant emails, or copying and pasting documents in a non-forensically-sound manner. These practises could render important metadata (hidden data that sits behind other data, e.g. behind an electronic document or email) unreliable, or worse still, may even lead to the corruption of data.

Poor collection practices can also lead to issues with deduplication (a process involving the suppression of identical copies of electronic files from a document review platform) due to the potential altering of files, leading to duplicative and wasted review efforts.

A data scoping exercise will also help gauge a company’s IT and discovery capabilities to help determine whether a third-party forensic firm needs to be engaged to assist with the collection process. For example, a company with Microsoft 365 will have inbuilt eDiscovery tools at their disposal to identify, hold and export content across mailboxes and other sites. For investigations requiring a detailed examination of potentially deleted data, an in-house IT function is likely to require third party forensic assistance.

For more information see our earlier blog post about collecting data for an investigation.

Over-reliance on keyword searches

Keyword searches are a convenient tool to narrow down a dataset. Used correctly in a review platform they can be highly effective, however they are often either too broad and return many false positives, or too narrow and end up excluding relevant material.

Words can have multiple meanings in different contexts, or they may be spelt incorrectly, abbreviated or intentionally obfuscated to avoid detection. To minimise wasted time and effort reviewing irrelevant documents, proper consideration needs to be given to keyword syntax and ensuring that selected keywords operate as intended.
An eDiscovery expert knows how to use alternative tools in conjunction with or instead of keywords, depending on the needs of the investigation. Conceptual analytics and technology assisted review can locate relevant documents which do not necessarily contain the expected keywords. Dashboards and data visualisation tools can be used to uncover trends, such as unexpected off-hour communications, which may warrant further investigation. For more information see how eDiscovery tools cut time and cost in the right hands.

Reviewing documents outside a centralised platform

A centralised review platform is a database which stores electronic information and allows data to be searched, sorted, reviewed and produced. Trying to review documents outside such a platform (for example by reviewing in Windows explorer or using hard copies) can lead to an inefficiently tracked and error-prone review, which in turn leads to additional costs and potentially flawed productions.

Sometimes companies end up doing both – reviewing documents both outside and inside a review platform, for instance where documents are downloaded locally or printed out, or a review platform is not set up at the start of the review. This can cause problems in identifying duplicates between the documents in the platform and those outside it. Moreover, any future productions (for example for disclosure to an authority) that are run using the review platform may be more difficult to prepare if it becomes necessary to ensure consistency with the format of any productions made from outside the platform.

Ensuring that documents are maintained in a review platform from the outset means that all coding and production decisions are tracked and auditable and, importantly, company data remains secure and centralised.

Rushing to review without careful planning

Jumping into review without sufficient planning upfront will waste precious time downstream. Careful thought should go into planning eDiscovery workflows to avoid rework and inconsistencies in review. For example, changes to the review coding fields (such as adding new issue choices) and review protocol may require re-review of already coded documents. While some changes are inevitable as facts are discovered during the course of review, careful planning will minimise any disruption.

Allowing time to run early case assessment (ECA) prior to review will also ultimately save time and effort, and reduce costs. ECA involves leveraging technology and workflows to gain early insight into a dataset. This can help reduce a large dataset in the following ways:

  • Files that may not be relevant to the investigation, such as marketing emails, emails to a large audience, contact files, system files and repetitive images (eg company logos) can be removed upfront.
  • Clustering provides an overview of the key themes and concepts within a dataset with little user input and enables prioritised review based on those themes.
  • Communications analysis helps identify key communicators and paints a picture of who is communicating most frequently about relevant topics.

eDiscovery experts are used to guiding legal teams through the ECA process.

Speaking to eDiscovery experts early and often is key to ensuring that an investigation runs as smoothly as possible. A&O in-house eDiscovery experts work closely with our lawyers to ensure efficient and cost effective e-discovery. To learn more about the services offered by the A&O in-house eDiscovery team, please contact Scott Robson or Christina Zachariasen.

This is the fifth post in our series on eDiscovery in investigations, which has also looked at:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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