With All The Hype, Let’s Not Forgot The Blocking & Tackling Of E-Discovery Tweet
Having just entered our fourth decade in the E-Discovery space, we are entitled to our mid-life crisis and our current paranoia involves not hearing or learning about some new blockbuster technology that has the potential to forever change the E-Discovery business. Our fear of becoming technological dinosaurs or obsolete has now been exposed to all on the internet! So we search and we search and we test and we test and every now and again you find something new that can enhance your process.
Enhancement, however, is not replacement of your process and unfortunately many of today’s hot flash solutions forget that simple message. So today we want to step away from the conventional wisdom for a moment to share our perspectives gained from over 23 years in E-Discovery: With All The Hype, Let’s Not Forget The Blocking & Tackling of E-Discovery.
By that, we mean the simple things of E-Discovery practice, i.e. things that allow you to declare an effort as having been done correctly or advise a regulator that a production was thorough and complete enough. Who is making that decision for your company, on your cases? Who is making sure that all the good housekeeping discovery tasks are being attended to, such as creating an unimpeachable chain of custody, detailed file level cataloging of what was staged, preserving pristine metadata, knowing what has been removed as duplicates and why, knowing what or what parts have and haven’t been searched, running thorough and effective filters, generating complete and flexible extracts of responsive files, safely performing redactions or generating productions and exhibits. Many of the tools on the market today only cover one portion of the waterfront and do little or nothing else. Yet in their hype and with the help of the “objective” press seem to suggest that they are the answer to any E-Discovery question you ask!
Don’t be fooled!
Some leading ESI Processing tools actually ignore encryption, passwords, embedded files within documents, comments, notes, calendar items, notes, etc. Some E-Discovery tools modify the metadata of the files upon export and effectively sever the chain of custody. Maybe there is a reason you didn’t get someone’s email!
Some Review Tools don’t have any Repository component or Production engines or efficient method to export data. You may be able to find something in an eloquent way, but either it takes forever to export the results or you have to reprocess the ESI, as it wasn’t designed to go all the way to production. If you didn’t know this already, don’t worry, but, these are serious problems! If you just found this out, what are you planning to do in your next career?
Some concept searching tools require weeks of software training, subject matter experts and concept weighting before they even can be used on a single file. What responsibility do you have to know what type of tools “were used” vs. “were available to be used” to collect ESI, process ESI, filter ESI and review / produce ESI? What obligation do you have to assure yourself, your opponent and the Court that the discovery performed by your side was credible and that your tools, process and quality controls work as promised. Many USDC Judges believe you have a solemn obligation to know these things, even though many lawyers prefer or at least try to remain above the E-Discovery fray. But those days have largely ended and it is appropriate to promote E-Discovery standardization within your Corporation or Law Firm as a way of driving down the total cost of ESI Processing and Online Document Review. So, if our words aren’t good enough, perhaps you should read USDC Judge Scheindlin’s latest E-Discovery opinion, “Zubulake Revisited: Six Years Later!” In an 87-page opinion, Judge Shira A. Scheindlin sanctions plaintiffs in a complex financial transaction action for "conducting discovery in an ignorant and indifferent fashion." It leaves little to the imagination.
Partial tools, however good at doing one particular task, only result in partial solutions! While we are always excited about and anxious to use cutting-edge tools, such as Content Analyst or Equivio, for certain mission critical areas, in our opinion, and with no disrespect meant to anyone, they are niche components of a total or overall E-Discovery solution. They by themselves are not the total solution, nor do they try to be!
Some of today’s leading E-Discovery solutions, at least in terms of market share, rely on products, considered by us and other experienced practitioners as partial niche components improperly packaged as providing the complete solution! They do not provide the complete solution! Those solutions and their underlying process can often be challenged as being partial and incomplete.
Our solution pays homage to the simple things, the blocking and tackling steps of E-Discovery. Often you need to have a sound and solid foundation in place to benefit fully from process enhancements, such as conceptual search or near duplicate analysis. When properly deployed, these enhancements offer major quality and productivity gains. We deploy them for early case assessment, foreign language detection, “smart batching” during the Review phase, enhanced Privilege analysis and to ensure consistency of redactions. Given the rapid increase in ESI volume, new and better methods are always going to be required. They can be utilized without sacrificing any control, completeness and/or project efficiency! Absent quality control checks and critical system components, however, these misdirected E-Discovery products are less reliable and potentially offer partial and incomplete solutions. This can often increase total project cost without ever realizing any true cost savings. Make sure that with all the hype rising about E-Discovery in 2010, you don’t get lost in the clouds!
Electronic data has become the crucial source of discoverable evidence in corporate litigation and regulation. This presents many new challenges to which today's companies and their counsel must respond. Evidence Exchange is ready to assist you from planning through trial support with our combination of years of experience and cutting edge technology. We can assist you in creating a litigation response plan that reflects the integrity and culture of your organization. Learn more.
