How to Drive E-Discovery Outcomes with Human Experience and Technology

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For the third year in a row, readers of the New York Law Journal chose TransPerfect Legal Solutions (TLS) as their #1 End-to-End E-Discovery Provider.

This time, the award came alongside recognition as the #1 service provider in five additional categories:

We like to believe that the reason our clients keep choosing us is our blend of high quality, well-trained staff and industry-leading technology.

We all know that in today’s e-discovery landscape, quality and efficiency depend on the use of top-tier technology. That said, technology alone is never enough to realize success.

Software in a vacuum does not account for the specific needs of the case and the idiosyncrasies of the client’s business and systems. It is the interplay of human decision-making and cutting-edge technology that truly drives savings, quality, and efficiencies.

This article explores a few examples of where that interplay saves money and increases quality across various points of the EDRM lifecycle.

Data Collection

Collecting data correctly and defensibly is the foundation for driving efficiencies in discovery. Understanding each system from which data must be collected and its specific nuances is paramount to a successful outcome. Failure to understand these systems may lead to:

  • Corrupt or incomplete collections.
  • Costly and time-wasting re-collections.
  • Additional lawyer time for rework and problem solving.
  • Expensive motion practice and even spoliation sanctions.

A great example of this is self-collection in Microsoft 365’s Security & Compliance Center. If used correctly, Security & Compliance Center can be a powerful tool that allows organizations to reduce e-discovery costs by targeting data through date range and other filters. However, organizations must be wary that, depending on how they utilize Office 365, the system may not search every attachment in the data set (including potentially the contents of zip files, password-protected files, and certain non-OCR-ed files, like some PDFs). This means that the keyword searches must be limited to appropriate circumstances and used with caution.

Thus, the use of the Security & Compliance Center requires experience with the tool’s best applications and limitations to drive the best results in e-discovery.

Processing and Culling

The processing stage offers the opportunity to make decisions that can have ripple effects throughout the remainder of the matter—both positive and negative. When done right, the case team can take steps to safely eliminate large amounts of non-responsive data. Because eliminated data does not need to be hosted or reviewed downstream, the decisions made here can save significant time and costs.

Early Case Assessment (ECA) is a powerful exercise that attorneys and their clients can apply to not only get an early look at important facts and evidence in their case, but also make proactive decisions to eliminate non-relevant data and achieve significant cost savings. That said, the process is active and investigatory. It requires someone with knowledge of the facts of the case and familiarity with the client to apply human judgment to the technology.

For example, email domain names (e.g., @cocacola.com) can be analyzed and either highlighted or eliminated in bulk depending on their relevance. Mass emails from industry groups or advertisers that clearly have no relevance to the matter can be culled from the data set in appropriate circumstances. On the other hand, for example, if the crux of the matter concerns whether an individual from one company communicated with an individual from the client’s company, that company’s domain may be identified as highly relevant and prioritized for review.

Search term audits are another way to proactively use ECA tools to drive efficiencies and ensure accuracy. When running search terms, sometimes decisions are made based on a “comfort level” of hits within a report. Meaning, generally, that counsel has a certain expectation of the number of hits it will find in the data set. They may expect to see that the term hits on 100 files but surprised if it hits on 100,000 files. Using ECA tools to look at a sample of documents within these higher hit counts could help reduce irrelevant data by giving counsel the opportunity to revise the term or link it with other terms. It can also confirm for counsel that their proposed or negotiated search terms will successfully pull in relevant evidence.

How does this all work in practice? In a recent construction matter, a search term hit on roughly 300,000 emails. The ECA exercise identified documents that hit on the search terms, but for construction projects that were not relevant to the matter at issue. Emails related to these extraneous projects were then excluded from the data set, effectively halving the volume of search hits. Further analysis removed irrelevant email domains, for an overall reduction of 200,000 documents, leaving only 100,000 documents to review. Spending a few hours of time to run through this ECA exercise saved over 4,000 hours of document review—a savings of hundreds of thousands of dollars. While it was the technology that allowed for the rapid exclusion of data, it took the experienced, skilled eyes of the human users to unlock the efficiencies of the ECA tool.

Data Hosting and Review

Significant costs can be avoided if the case team can accurately determine the most appropriate time to image files. Imaging is the process of converting the native file to a TIF or PDF image. Imaged files are needed not only to perform redactions, but also, generally, for production. Additionally, imaged documents are most convenient for conducting reviews in platforms like Relativity.

However, review platforms also allow the end user to review the underlying document in native format. Imaging the full set of documents prior to this determination can be wasteful when it is done on large numbers of files that may not be needed for the case. In some instances, all documents are imaged simply for the convenience of allowing the case team to export them at will. This significantly increases hosting sizes (sometimes by three to four times) and therefore increases costs. In certain circumstances, imaging only the documents that are needed for production will reduce the overall hosting cost. Knowing when to hold off imaging to achieve these savings takes an experienced team with an understanding of the case.

Similarly, it is a judgment call as to when to inactivate dormant review licenses. Many platforms charge licenses for users each month. The key is to keep on top of who is actually accessing the review platform and removing those licenses for inactive users. The best providers have a real-time dashboard to allow users to see who is actively utilizing the platform and who may be dormant. Deactivating those who haven’t used their licenses, as well as proactively monitoring when the review phase of a case appears to be winding down, can eliminate waste.

Driving E-Discovery Outcomes

While we all wish e-discovery had an easy button that we could just push to get results, it still takes human experience and expertise to get the most out of today’s cutting-edge e-discovery tools. As the tools become more complex and powerful, that need for expertise only increases.

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