Taking a back-to-basics tact with cutting-edge e-discovery technologies saves time and money without compromising quality.
In today’s world of exponential big data growth, lawyers and their clients must wade through the ever-changing landscape of technological advances that promise the perfect solution for all things e-discovery. The modern suite of available tools certainly provides computing power and complex functionality unimaginable just a few years ago, though lost in the messaging is the reality that many tools today provide specialized solutions to very specific circumstances – hardly a panacea. The simple truth is that most cases today yield the biggest benefits and most impressive ROI by avoiding the noise of technological allure and focusing on diligent, efficient workflows and a back-to-basics approach to several key, and often overlooked, aspects of discovery.
Chart a Course
As any litigator knows, planning is paramount. From a discovery standpoint then, both counsel and client must develop a clear understanding of what data is relevant and how best to collect that data given the needs and goals of the case. Simple enough, right? Oftentimes, however, the “what cool tool launched this week” approach takes hold and critical early days are wasted trying to bend new tech in order to shortcut proven methods and simple workflows. While there certainly are ways to drive efficiency with tech downstream, diligence in planning early on is more of a workflow consideration than a technological one and sets the stage for distinguishing useful tools from interesting but fruitless distractions later. Precisely and accurately determining relevant goals for data collection and processing early on also provides a clear technological basis for efficient searching, culling and potentially producing data regardless of the technology cocktail on special that day. Now that we agree on the importance of planning – and avoiding shiny objects – consider three essential back-to-basics techniques that will get you a high ROI in most midsize and larger matters: email threading, TAR 2.0 for QC and leveraging prior work for future cases. Each approach, while simple conceptually, is designed to increase efficiency, increase quality and provide cost savings.
Basic #1: Email Threading
The multipurpose tool of all experienced discovery practitioners – that Swiss Army knife useful in all circumstances – is email threading. Simply put, it is the identification and reorganization of email relationships into logical conversations. It allows for a more efficient review; it mimics how most of us read our own emails; and it helps reduce the number of documents reviewers must address while also providing the insight and context so critical in determining responsiveness or privilege (and ensuring privileged material is not inadvertently produced).
In terms of cost-benefit, email threading is now a widely available feature that provides incredible value for a comparatively modest investment in technology and time. More advanced solutions are able to not only create appropriate grouping and threaded conversations, but can also now create visualizations of email chains for intuitive at-a-glance interpretation. As the costs of these tools continue to decrease, every case, regardless of size, should consider leveraging this technique not only from an efficiency and quality perspective, but also in terms of credibility and defensibility.
Basic #2: TAR 2.0 for QC
TAR 2.0 is an evolution of Technology Assisted Review that leverages Continuous Active Learning. In this new and improved version, the computer system’s various algorithms continue to “learn” based on ongoing judgments and instructions from the review team. In prior iterations under TAR 1.0, systems received a “one-time training” at the outset of a review that did not take into consideration improvements in the reviewers’ collective understanding of the corpus of data over time. Though a significant advancement in the field of discovery, it is a methodological improvement not specific to any particular software or technological solution but rather one that acknowledges that learning is, both mathematically and in practice, on a curve – and a steep one at that.
TAR 2.0 offers unprecedented new abilities to determine critical thresholds for both privilege and responsiveness. As with email threading, the modern discovery suite of solutions offers very cost-effective alternatives for performing this important step, which many case teams continue to skip, oddly, for being too advanced and perhaps misunderstood in its application.
While there are certainly broader applications (read: noise), an often overlooked use of TAR 2.0 is in the high stakes workflow of privilege review. In that instance, a TAR 2.0 system can analyze the previously coded data set and assign a probability figure as to whether a document is privileged based on privilege calls made throughout the review. This process acts as a QC check and allows a straightforward review of the entire corpus of data to ensure that all privilege calls are consistent and reflect the best knowledge of the case. This can lead to an enormous time and thus cost savings when compared with the older privilege search term screens while increasing the quality of potential productions and minimizing the risk of inadvertent disclosure.
Incidentally, this same workflow is applicable and useful in nearly all QC checks on reviewer coding.
Basic #3: Leveraging Prior Work
Specific to the goals of corporate counsel, who may find themselves with a series of related matters (e.g., intellectual property disputes, class actions and other complex litigation, employment disputes and so forth), is the ability to leverage prior work for future cases. Often times with serial litigants, large enterprises or companies in fields with particularly active litigation landscapes, matters overlap in terms of the underlying data from one case to the next.
Modern discovery toolsets give corporate counsel the ability to avoid “reinventing the wheel” so to speak in terms of pre-coding a corpus based on the insights derived in a previous matter. For example, if a previous matter had 50,000 documents that were identified as privileged and a subsequent matter has a 20 percent overlap in terms of the data that counsel requires, there is often no need to revisit those documents marked as privileged in the previous matter, regardless of the allegations at issue.
As with the previous techniques, this is more of a methodology and workflow approach than a technological solution to new matters, and it provides significant time and cost savings versus a “blank canvas” approach to every new matter. Far too few corporate counsel are aware of the ability of modern systems to go back and leverage prior disclosure on previous cases to introduce process efficiencies in ongoing matters. While the adoption of techniques that leverage prior work are still nascent, the back-to-basics mind-set of leveraging efficient business processes, information governance and existing intellectual property are sound.
Building Your Team
Regardless of whom you choose as your discovery provider, corporate counsel need to understand that even the most innovative technology platforms may fail if they do not target the correct data sets as defined by an experienced and informed legal strategist using clear and well-developed workflows specifically tailored to the goals of the matter. Using the most cutting-edge technology to derive inaccurate conclusions can, at best, compromise a small case and, at worst, completely destabilize a large, complex matter. So keep it simple: Drown out the noise and stay laser-focused on those tools and workflows that make sense and offer a clearly defined benefit to your case needs.
Nordo Nissi is head of electronic discovery and litigation technology in Goulston & Storrs’ litigation group. He has a decade of experience working with clients across a broad range of industries.
Tarek Ghalayini, managing director at AlixPartners, leads the discovery, data analytics and litigation/investigation consulting practice in Asia. He is known for developing and executing effective and straightforward solutions that bring clarity and consistency to cross-border and local matters alike.
Published October 8, 2018.
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