Expert Opinions in eDiscovery and Legal Technology

Electronic Discovery (eDiscovery/eDisclosure) is the process of identifying the source of data, gathering data, narrowing it down to relevant information, and presenting it in the form of evidence in litigation. However, the process is not as simple as it sounds. It comprises 9 different phases, each of which has its own complications. To make things more complicated, we’re faced with an explosion of data produced by organizations. These aspects have led to a range of challenges for legal personnel and parties.

In this guide, we’ll take a detailed look into what legal technologies eDiscovery experts around the world emphasize or recommend to simplify the EDRM process.

Expert Opinion on the 9 Phases of the eDiscovery Process

Information Governance

Numerous technological solutions are suggested by experts around the world for information governance. The discussion on IG technology not only covers new tools but also emphasizes better utilization of current technology and systems. The most innovative IG technologies[1] to support the EDRM process include:

  • Data Mapping: Designed to assist in creating, updating, and organizing a comprehensive directory of the data environment
  • Pre-Collection Analytics: Relies on semantic search, concept search, predictive coding, Boolean search and many other methodologies to support IG, focusing on analyzing data before eDiscovery begins and collection happens.
  • In-Place Preservation: Integrated with data sources to safeguard data from accidental or intentional deletion without removing files from their native settings.
  • File Analysis: Tool pointed at a data repository to obtain valuable information, such as metadata, the department that owns the files, who has access privileges, and so on.
  • Automatic Classification: Rely on pre-defined rules or algorithms to classify documents in the correct category based on their context, metadata, and content.

Identification

This eDiscovery phase is concerned with the ability to access and examine potentially responsive information before it’s collected. The clearest example of this is the Early Case Assessment (ECA) technology that helps identify responsive data before the collection process begins.

The traditional approach to ECA involves collecting potentially relevant ESI at the outset of a litigation process prior to analyzing its relevance. eDisovery experts around the globe suggest various ECA technologies. Among them, the three most important tools[2] include:

  • Artificial Intelligence: Deep learning and predictive technologies rely on AI-based intelligent algorithms to classify responsive documents at extraordinary efficiency levels.
  • Pre-Collection Analytics: These tools are capable of crawling data sources and delivering basic insights including data volumes and performing advanced filtering and searching to ensure relevance.
  • Automated Interview Systems: A dedicated interview application comprising of built-in functions that ensure that all steps in custodian interviews are performed in an automated, logical sequence.

Preservation

ESI preservation is not just conducted to avoid sanctions, but the process also supports larger company goals, keeps legal teams focused on the merits of the litigation, controls data volumes, and ensures discovery defensibility. Keeping this in mind, eDiscovery experts recommend the following preservation tools[3]:

  • Employee Change Monitoring: To ensure that responsive data remains preserved, employee change monitoring systems use employee status changes to detect when a staff member switches their department or leaves the company, and take proper actions such as reissuing a legal hold.
  • Legal Hold Software: Often integrated with HR and other legal enterprise systems, this is a dedicated solution that automates the distributions of all legal hold notices and ensures compliance.
  • In-Place Preservation: This eDicovery tool is not just used in ECA but also in the preservation phase. It helps automate deleting or freezing functions, and other preservation actions in the EDRM process.
  • Specialized Interview Tools: Custodian interviews can be extremely difficult to manage and prove time-consuming and disruptive for employees. Specialized interview tools help mitigate these issues by granting you access to reusable and configurable questionnaires as well as recording and saving responses

Collection

This phase involves gathering and centralizing potentially relevant ESI through a legally defensible approach. The latest litigation technologies based on opinions from global eDiscovery experts allow you to bring the collection process in-house. These powerful technologies should considerably reduce the time and total eDiscovery costs associated with retrieving and reviewing dataset from a third-party vendor. Some of the collection tools[4] include:

Spot Collector Tools: These are portable USB devices that enable custodians or IT personnel to crawl and collect data from systems that aren’t connected to the network. What’s valuable about these tools is that they can be programmed to collect only relevant files instead of all files in a computer’s hard drive.

Data Source Integrations: This involves integrating your collection software with enterprise data sources such as email services, structured databases, Sharepoint services, etc. This eliminates the need to undertake manual collections.

Mobile Collection Tools: These are devices that extract data that may need to be collected from mobile phones. Certain data that’s present on mobile phones are a little more accessible and can be collected from somewhere else, but a certain type of data never leaves the phones, such as text messages. Mobile collection tools not only extract them but also reformat them for legal production and a solicitor review.

Processing

Closely linked to data collection, data processing is all about preparing the collected data for attorney review. In other words, the processing phase involves cleaning up the messy mix of formats and file types, duplicates, meaningless system files, and attachments in the collected ESI so it can be searched and culled by review tools and solicitors.

The latest litigation technologies discussed under the collection phase are also used in the processing phase. In addition to those, eDiscovery experts recommend the following two data processing tools[5]:

Pre-Collection Analytics: These tools are used not just in the identification phase but also in the processing stage. They not only crawl data sources and offer basic insights but also perform advanced filtering and searching to capture and process relevant content. They provide you with the visibility and intelligence you need to focus on relevant content and target the right collections.

In-Place Processing: Traditionally, processing used to be a separate eDiscovery process that would take place after collection, and was undertaken by service providers who would charge on the basis of gigabytes processed. The latest search and collection technologies allow for in-place processing, which refers to processing data at the point of collection. This eliminates the need to share collected data with an independent party.  

Review

The review phase involves assessing ESI for client/solicitor privilege and relevance. The process contributes the most to eDiscovery costs, especially because most companies outsource eDiscovery to law firms.

Leveraging a powerful review tool that allows for labelling and redactions across datasets can help reduce both time and money spent on the process. The latest litigation technologies based on artificial intelligence tools enable in-house eDiscovery teams to efficiently separate privileged, relevant, and non-relevant documents.

Given the critical importance of document review, many crucial breakthroughs in eDiscovery technology address this phase of the EDRM model. They have greatly streamlined the traditional, linear review model, moving it away from the manual document-by-document inspection to an analytics-based approach.

The most recognized innovation in technology-assisted review (TAR) is predictive coding. While it’s still in use, the latest advances in TAR rely on AI technology. Based on expert views, here are some of the most valuable TAR tools:

Document Tagging: Consistent tagging is extremely important for review. Advanced review platforms should allow users to apply pre-defined tags. This way, all reviewers will be able to use the same labels as they review each document.

Search Filtering: This technology will allow users to run searches on documents uploaded on an eDiscovery review platform using specific combination phrases, keywords, and even concepts. This should allow them to quickly find relevant documents.

Stamping/Bates Numbering: During the review process, both parties should have a convenient way to reference specific documents in the production/review set. This is where the Bates numbering feature comes in handy. This innovative tool expedites document identification and retrieval by automatically attaching a unique identifier to each document.

Batching: Since review projects are typically conducted by teams rather than individuals, document review sets need to be split into batches for each reviewer. Batching automates this function when a document is uploaded on the review platform.

Redacting: Redaction refers to deleting or removing certain information from a document before it’s disclosed to the opposing party when required. The latest review platforms expedite the redaction process as they allow users to select passages or words and black out text. They contain auto-redaction capabilities that will automatically delete all instances of a phrase or word.

Analysis

The analysis phase involves examining ESU for context and content such as discussion, key patterns, people, and topic. While it appears after review in the EDRM model, in reality, analysis is deployed in several other phases of eDiscovery.

According to many experts, document analysis should take place simultaneously with the review. Since the analysis phase requires a profound knowledge of the litigation subject matter, both subject matter experts and high-level solicitors must be involved in evaluating the process data. Based on expert opinion, the most valuable technology for analysis includes:

Concept Searching[6]: The concept searching tool is designed to bring forth subject matter and key concepts in the ESI. It allows a reviewer to evaluate the acquired ESI for not just specific words but also for the document’s subject matter and the meaning of the phrases. It’s a powerful tool that can be used to discover potential keywords or relevant documents that may not have been found through traditional keyword searches.

Production

The production process in the EDRM model involves producing ESI which is considered relevant for use as evidence in the litigation process. The phase is tied to CPR rules that define what, when, and how information is to be produced. Parties negotiate production protocols regarding the form, manner, and scope of turning over relevant documents.

According to ediscovery experts, litigation technology professionals should be utilized to create the production set and review every component. If the receiving party uses a completely different review tool or a different version of the software, they may not be familiar with a particular load file format. In a situation like this, the litigation technology professionals must communicate directly to eliminate delays, frustration, confusion, and eDiscovery costs.

One of the tools that help litigation technology professionals convert load files from one application to another is:

EDRM XML Load File[7]: This is the standard XML load file developed by EDRM. Its adoption will foster a seamless transfer of information between different review platforms. However, before requesting XML as a load file format, it’s important to determine whether the service used by the producing party conforms to the XML standard.

Presentation

Finally, the presentation phase involves how ESI is displayed in the form of evidence at trials, depositions, and hearings. In the past, documents were presented in paper form, which is still seen in some cases today. The latest litigation technologies have made it easier to present ESI in image or near-paper format. However, some cases require legal teams to present legal documents in native format. Here is a list of formats[8] in which ESI may be presented in court,:

  • Image
  • Near-Paper
  • Native
  • Near Native
  • Audio
  • Video
  • Presentation Software
  • 3D Diagrams and Animations
  • PowerPoint
  • KeyNote
  • Data Tables and Charts
  • Databases- ACCESS, Oracle
  • Internet Sources- Screen Snap, HTML/XML
  • Oversized Printing

Experts’ Views on Data Privacy and Cybersecurity

In the past decade, the amount of ESI involved in legal matters has grown substantially. This includes data from computers, phones, software applications, social media, machines, and more. Given the myriad of data sources, investigative work to ensure all the information is available can be extremely complex. This has led to several issues arising for various reasons, such as proportionality. An increase in data owned by organizations means more data needs to be collected and reviewed in the eDiscovery process.

This has not only increased eDiscovery costs but also emphasized the need to implement more robust cybersecurity systems to avoid data privacy issues, as per the rules issued in the General Data Protection Regulation (GDPR).

The best way[9] to begin is to interview the custodians who handle potentially relevant data. Specialized interviewing tools discussed under the preservation section can be used here. Once the data is collected, eDiscovery platforms will utilize machine learning technology to sift through the information, offer deep analytics, and assist you to efficiently determine what is relevant to the case. Use a platform that accommodates all types of data, including text messages, emails, social media posts, and excel files. This should ensure that every piece of information is coded, redacted, organized, and tagged correctly.

While data security is critical at all times, it becomes the single biggest concern when files leave your organization. eDiscovery experts recommend that you should work with an eDiscovery provider that encrypts data from the first instance of data collection and stores it in a safe environment that’s sufficiently guarded against criminal minds. Ideally, the information should be forensically collected via a secure cloud portal, so there’s no risk to the hard drive. As opposed to sending technicians to collect data in person, remote data collections are quite inexpensive.

Industries that work with personally identifiable information and intellectual property, in particular, require robust quality control measures. This is particularly true for the pharmaceutical industry, in which legal and investigatory matters are all too common. eDiscovery experts advise that the QC process should begin with the first file collected, persist throughout the filtering and reviewing process, and last until the documents are finally presented at the court.

QC should ensure that all data maintains encryption and hash codes and that privileged or sensitive files are not mistakenly produced. Plus, your eDiscovery team should include technical and forensic experts who know about your industry, eDiscovery professionals, and legal counsel, who collaboratively plan the protocols for handling data.

Creating related procedures and policies for information management, remote work, mobile devices, and data retention should also be of great help. With well-documented processes, data can be managed efficiently, regardless of the volume. When these protocols are correctly defined, your data will stay secure and all processes will comply with the GDPR.

E-discovery is a complex process. With the help of this guide, though, you now know what eDiscovery experts think about the implementation of legal technology in eDiscovery and the latest litigation technologies recommended by top experts.

Copyright © 2022 GoeDisco

Posted in