The modern technological solutions have enabled parties to manage ESI quickly and efficiently. They no longer need to sift through endless stacks of paper to find and preserve evidence for litigation support.
This, however, doesn’t mean that electronic discovery is free from errors. Given the skyrocketing creation and use of data by firms, and types and amounts of data that can be relevant to legal actions are expanding faster than ever.
With the explosion of ESI sources such as social media and emails and increasing nuances of document review, few companies and legal entities are adapting to these changes in a way they should, resulting in eDiscovery mistakes.
In this guide, we’ll identify and address some of the common eDiscovery pitfalls that parties and lawyers can fall into.
1. Improper Understanding of Metadata and Underlying Data
Among the most common eDiscovery mistakes include not possessing a correct understanding of the metadata and underlying data that often results in deriving incorrect conclusions. When you have a variety of data sources, including documents, database content, spreadsheets, emails, etc. to process, analyze, and review, one can easily assume that the types of metadata are consistent across all data.
For instance, in the case of Microsoft Exchange, relying on the ‘last-modified’ attribute to determine when a custodian altered the attachment in an email in their inbox can result in faulty conclusions. This is because the ‘last modified’ feature on MS Exchange is simply triggered by reading the email and doesn’t necessarily indicate mean that someone made changes to its text or attachment. To determine when the attachment was modified, you must access the ‘last modified’ attribute on the actual attachment.
This was only a single example of how a simple misunderstanding of metadata and underlying data can lead to a disaster. There are numerous other issues that may arise as a result of this. The best way to avoid any such problems is to consult technology experts and confirm critical assumptions with them.
2. Improper Understanding of eDiscovery tools
Another common mistake operators make is to use technology for electronic discovery purposes without possessing sufficient understanding of the eDiscovery tools. This often results in loss of data, missed data, or corruption or alteration of data, hurting the overall implications for the case. A party may even be charged for spoliation of evidence that may result in adverse inference.
Therefore, for each eDiscovery tool, operators must have an in-depth understanding of its limitations, prerequisites, strengths, and common issues. On top of that, they must also be aware of the differences in search capabilities of different tools, the mechanisms for data interchange or export parity that exist in the tools, the tools that can co-exist on a workstation, and those that cannot, and so on.
One of the most effective remedies to this mistake is to use an integrated analysis tool suite that’s specifically designed for ESI.
3. Using Generic Search Terms
Using keywords helps find, review, and sample hit results. However, using search terms that are too generic may not provide you with the right review set. Certain high-volume terms can give you a large number of search results, making the process problematic and more costly. In many cases, simply adding the words ‘Within’ or ‘And’ can help you reach more targeted searches. Plus, try to keep the search times dynamic.
To identify documents that have general coding conflicts, violate coding rules of the Review Guidelines, or have an inconsistent family relationship, consider using technical searches.
To ensure that privileged documents do not become part of the final documents set to be produced, create and use privilege search terms for the final screening of documents coded ‘Not Privileged’.
4. Not Cooperating With the Opposing Party
It’s easy to become adversarial in litigation processes but cooperation has proved more beneficial in electronic Discovery. Most parties are not aware of the issues they may be faced with by not collaborating with ESI. For example, when parties don’t meet to prepare and collaborate for the litigation, the risk of eDiscovery sanctions remains high.
To avoid this, it’s extremely important for both parties to be on the same page. There must be transparency in the development of search criteria, the production export criteria, and eDiscovery demands.
5. Overly Relying on Legal Counsel
In many cases, organizations leave the management of electronic Discovery to legal counsel. This often results in inefficiency because many law firms tend to partner with other eDiscovery firms, depriving you of the benefits associated with working with a single eDiscovery partner. Plus, if an eDiscovery partner loses sight of your financial best interests, your case can become a black hole of money. Your legal counsel may order eDiscovery services without taking costs into account.
Some companies leverage several, redundant eDiscovery systems, which makes the process even more inefficient. The fragmentation of processes and systems that result opens the door to irregular handling of data, especially for global businesses whose data reside in various jurisdictions. Data in eDiscovery forms evidence, which requires extreme care.
Therefore, companies should seek a single partner paradigm that supports the goals of both efficiency and compliance through repeatable, standardized EDRM processes and workflows.
6. Not Viewing eDiscovery as an Iterative Process
Moving on, many people rely solely on the initial identification phase and don’t recognize ESI collection as an iterative process. This often results in an incomplete set of evidence, thereby jeopardizing their case.
Electronic discovery should be viewed as an iterative process. Simply performing one or two searches or collections won’t be enough. You’ll need to conduct collections throughout the discovery effort. For instance, during the initial collection phase, you identify a handful of concepts or keywords of interest, 4 custodians of interest, and a couple of months in which company events are of interest. When you analyze this set of criteria, it will expand over the course of the investigation.
On top of that, your initial assumptions related to phrases, keywords, concepts, and date ranges of interest may be wrong. The results of the analysis of initial identification may yield new concepts, keywords, and phrases. The scope of the investigation may need to be expanded or narrowed with the revision of key dates. In some cases, more custodians of interest may need to be added as well. This will warrant a fresh investigation using the revised criteria.
7. Failing to Understand the Different Categories of ESI
Some parties proceed without possessing a basic understanding of the eDiscovery process. This includes being familiar with the different categories of ESI. Without this critical knowledge, a party won’t know whether a disclosure request they’re making or receiving is reasonable or not.
It’s important to understand that collecting and extracting data can be extremely tedious. Without having a clear understanding of the different ESI categories, parties can face significant problems in accessing the ESI.
Among the different types of ESI include online data, active data, archived data, backup tapes, and near-lined data.
8. Not Trusting Artificial Intelligence
While many review platforms come with artificial intelligence software, many associates or solicitors don’t have confidence in it. This not only makes a review process time-consuming but also makes it costly.
No matter how enormous your document volumes are, AI-assisted review can make the process highly efficient. Through this technology, even small and medium-sized businesses can head toward large data-driven eDiscovery. You’ll experience massive time and cost savings as a result.
9. Staying Disorganized
Parties who work independently of an eDiscovery consultant risk being disorganized. No matter how sophisticated your eDiscovery tools are, if you don’t organize yourself well, you won’t even know where to collect the data from, nor would you know how to preserve it so that it can’t be deleted or altered.
An experienced eDiscovery service provider who is familiar with the Civil Procedure Rules (CPR) can help you organize your efforts and ESI.
Like traditional litigation processes, eDiscovery is subject to mistakes and errors. You can say goodbye to manual paperwork and all the issues associated with it, but the switch to digital platforms comes with its own set of issues.
Since you’re now aware of the most common eDiscovery pitfalls as well as the correct course of action in each case, try your best to avoid them through the eDiscovery process. Working with an experienced eDiscovery service provider can help you avoid most of the mistakes.
At GoeDisco, we offer litigation support, secure data hosting services, DSAR solutions, the latest litigation technologies, eDiscovery tools, and much more. For more information about our services, contact us at +44 (0) 207 157 9686 or request a quote!