Seven strategies for effective oversight over e-discovery processes and spend.
Last year, business-as-usual dispute and investigations activity, including e-discovery, shifted. As organizations pivoted to a more remote workforce, law department leaders grappled with how to work remotely, manage a growing workload with stressed resources and budgets, and address security and data protection issues brought on by remote employees clouding the lines between personal and workplace devices.
In fact, to meet pressing deadlines, two-thirds of legal leaders are pulling resources from other workstreams to support unplanned, high-urgency work, and more than half are defaulting to expensive outside counsel regardless of cost--with half going over budget to get fast turnaround.[1]
All this come at a time when controlling outside counsel costs tops the list of priorities for 89 percent of law department leaders.[2] To improve operational efficiency and internal productivity, many law departments are increasing use technology (high priority by 60%), nearly half have increased their use of technology tools in the last 12 months, and 30% have increased their legal technology budget.[3]
Yet, change can’t come fast enough.
Electronic discovery, the most costly and unpredictable part of litigation, posits an immediate opportunity for improved for cost-control, productivity and efficiency gains, In addition to investing in technology, legal department leaders are reexamining legal workstreams and maximizing internal and external resources to ensure return on investment--including e-discovery providers and law firms--fast-tracking technology and business model trends that were underway pre-pandemic.
Today’s new normal is fueling a new approach to e-discovery, one that looks wholistically at the optimal interplay between people, process and technology, to overcome challenges and remain successful in the future.
- Leverage start-to-finish cloud capabilities to speed time to resolution
Last year, the world pivoted to a more remote workforce. As we approach year two of the pandemic, it’s become clear that trends underway prior to 2020 have been accelerated, including the move to a more cloud-based IT environment.
For legal teams, where speeding time to resolution is critical to manage risks and costs, the transition to a cloud environment means looking at the entirety of the e-discovery process and taking advantage of every opportunity to improve, automate and expedite workflow. Moving many (if not all) e-discovery processes to the cloud helps remote legal teams meet short timelines that require prompt access to data for investigation or review, address the challenges of exploding data volumes, often Terabytes for a single legal matter, and have highly secure, 24/7 remote access to e-discovery technology.
A single start-to-finish cloud-based ecosystem eliminates unnecessary costs, risks and delays of using numerous technology platforms and relying on multiple data hand-offs to vendors and outside counsel, and no time is wasted making ESI promptly available for investigation and review.
2. Hold, collect and preserve wisely
Legal hold tools are among the lowest-hanging fruit to improve efficiency and reduce costs. Cloud-based legal hold notification platforms can automate legal issuance and tracking, employee questionnaires, expert processes, integration with IT and HR systems, and IT task suspension in accordance with data retention policies, and provide defensible tracking and audit trails.
When litigation hold processes are automated in the cloud, relevant documents can be accessed in hours—not days or weeks—improving efficiency and productivity. Compare cloud-based hold platforms with the alternative: expensive custodian interviews by outside counsel, manual tracking of responses using email or spreadsheets, and repeated requests to IT to collect and preserve potentially relevant data.
3. Leverage analytics to identify potential risks and save costs early on
For early case assessment (ECA) and investigations, legal teams need to get answers as quickly as possible: “Is the wind at my back, or in my face?” “Should the case proceed or settle?” “Are we sure no one cooked the books?” “Can we thoroughly and statistically demonstrate that there is no evidence to support the allegation?”
Many organizations, in an effort to save costs by limiting the volume of documents sent to outside law firms for first-pass review, invested in first-generation ECA software for collection, search and preparation of ESI. However, to find the facts, data was transferred to standalone analytics software—or moved to an e-discovery platform for full review, often by expensive outside counsel.
Next-generation ECA and investigations technology is a strategy that shouldn’t be left off the table, since it eliminates the inefficiencies and costs of multiple point solutions, vendors and full outside counsel review In addition collection and culling capabilities, next-generation technology includes front-loaded analytics and machine learning that rapidly surfaces the “who, what, where and when” (even the “unknown unknowns”), to provide rapid and early insight into potential areas of risk, liability and case strengths. If a compliance review or production is warranted, the data and all work product can be automatically transferred within the same system—in the cloud—for full review and production.
4. Limit human review
The harsh reality of modern e-discovery is that data volumes are exponentially growing year over year, with even the smallest internal investigation often involving too much data to be effectively reviewed by human eyes alone--placing a mounting pressure on legal teams to develop techniques to maximize efficiency.
Technology with AI, in the form of technology-assisted review based on continuous active or machine learning, is now necessary to prioritize, cull, and categorize data in most legal matters to assist the legal team to efficiently find and review the sought after information. Moreover, technology-assisted review can quickly identify information that previously necessitated expensive manual review, such as privilege, personal data including NPI and PHI, and more.
While TAR can certainly help limit eyes-on review, it is not always enough.
5. Integrate managed review teams into your team
Often, organizations staff up with bodies—such as junior associates and contract attorneys--believing that the more bodies, the faster the review will go and the fewer dollars spent. This approach can throw a huge monkey wrench into the review[RT1] —and the litigation itself—introducing inefficiency and risks of misalignment that can sacrifice quality.
Increasingly, organizations are adopting smaller, more focused managed review teams that can optimize the technology and align the team (managed review team, organization and law firm attorneys) based on areas of expertise, thus setting forth optimal workflow roles and checkpoints for enhanced QC. Alignment is critical for reliable and accurate coding, with consistent QC processes employed for privilege, responsive, non-responsive, PII, PHI, hot documents and more. When robust QC processes are employed at the start of a project, the managed review team can reduce QC by outside counsel from the standard QC rate of 20 percent of the documents reviewed to five percent or less, resulting in substantially less cost.
6. Manage discovery centrally
Another strategy, in line with having a single e-discovery ecosystem, is to manage e-discovery centrally leveraging multi-matter technology that draws on repeatedly produced documents across many similar matters, stored in a single repository.
Traditionally, departments have managed litigation portfolios in silos—sending data to multiple vendors and law firms based on the matter or area of expertise. Under this model, documents are collected, processed, and reviewed--even when many of these documents, such as common technical documents related to one patent infringement suit, are likely to be relevant where that suit has been alleged in another matter. Once the case is complete, the documents, coding and work product—including the costly review of privileged documents by outside counsel—is dispositioned.
Working in silos misses the opportunity for efficiency gains, cost-savings and process repeatability. By managing discovery centrally, each new matter creates greater efficiency because data is collected and processed just once. When new matters arise, documents can be assigned from the repository to a new matter without needing to re-collect or re-process, and prior coding (including privilege) can be pre-populated and retained for use across multiple cases. Data is kept secure by allowing in-house teams to control access and limit the flow of sensitive information across disparate law firm and vendor databases.
7. Develop repeatable processes
Standardizing workflows and technology across all parties—internal teams, outside counsel and managed review teams--can help gain control over data and ensure consistency across all cases. Organizations can start by evaluating the impact of current processes and tools and investigating best practices they can integrate into the approach. A corporate playbook can memorialize these standards to ensure consistent application and support process defensibility, from data preservation and collection formats to processing, loading and reviewing data to how workflows will be organized and the respective roles and pass-off points for internal reviewers, managed review teams and outside counsel.
By continually evaluating protocols and partners, a playbook supports an approach to discovery that can be both more accurate and more affordable.
8. Make data-driven decisions on spend and resources with business intelligence
Management guru Peter Drucker once said, “[only] what gets measured, gets managed.” This applies to managing law department performance, as well. Using data metrics and business intelligence (BI) strategies and tools can both improve matter management and drive informed strategic decision-making to reduce costs.
When data is aggregated and integrated into a central repository, reporting becomes more meaningful. Legal teams can better budget, properly manage day-to-day legal operations—including the daunting task of resource allocation across multiple matters—catch problems before they occur, easily keep other stakeholders informed and help estimate whether deadlines can be met and budgets adhered to.
The future is bright
While this year has been plagued by unprecedented challenges, these foundational strategies are key to gaining greater oversight of spend—particularly runaway outside counsel spend—while improving in-house efficiency and productivity.
To learn more, download the whitepaper, Seven strategies for effective oversight and control of eDiscovery spend.
[1] https://www.gartner.com/en/newsroom/press-releases/2020-08-06-gartner-survey-reveals-legal-leaders-are-struggling-with-their-workload-since-covid19
[2] Thomson Reuters, Legal Department (LDO) Index: Dedicated Legal Operations Comes Home, Fifth Edition, 2020.
[3] Legal Department Operations (LDO) Index Fifth Edition: 2020
[RT1]Link to managed review blog/posting
Published February 23, 2021.
