3 Keys to Effectively Manage Complex eDiscovery

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Jul 18

Complex or class action litigation is the bane of any industry lucky enough to be caught in the crosshairs of a plaintiff-friendly issue.  Entire industries can be seriously damaged by the expense of aggressive litigators bent on creating the ent big wave of serial litigation.  Enterprising attorneys are always on the lookout for any issue they can tie together with thousands of clients to create a base of litigation revenue.

Over 90% of the documents created in the world today are created in an electronic format.  Electronic documents can now be stored on a myriad of data sources- from laptops to iPods to cell phones.  Consequently, it has become increasingly more difficult for litigants to understand what information is available during the discovery phase.  Most prefer to turn a blind eye wiht the hope that opposing counsel will do the same.  However, the more successful litigators are those that use it not only to gain an advantage over opposing counsel but also to save their clients' litigation budgets.  There are three keys to managing complex eDiscovery while still staying on budget and on time.  

Take the time to prepare a discovery plan.  Preliminary interviews with key supervisory employees and IT staff can reveal a vast and complex data population that must be collected, culled and reviewed for relecant content.  One of the more common issues we run across is a client that either does not know who has relevant information or cannot locate information once it is identified.  Not only does the information reside in multiple locations but also in multiple media types--individual laptops, BlackBerries, iPhones, cash registers, time clocks, video feeds, backup tapes and external USB drives are just a few of the places where evidence could be found.  Media sources, office locations, key custodians all need to be discussed; only then can counsel craft a seamless, efficient discovery plan that will entirely support local counsel.  Any discovery plan needs to include a data map that will lead the forensics team to the right places while staying away from any rabbit trails.

Be smart about what and how you collect.  The most effective collection plans require careful consideration into how the data will be ultimately processed for review.  A collection strategy can ultimately save review time and production costs if done with an eye toward the final production.  While there is usually a need to cast a wide net for preservation purposes, it does not have to be the case with the data that is actually collected and processed for review.  By using the data map, you can pinpoint the areas that are high priority and avoid the costs associated with over-processing irrelevant data.  Further, proper collection methods are vital to the timelines affecting review and production.  If ESI is not collected per production requests from opposing counsel- i.e. no metadata was collected or the metadata fields were altered by the collection team-- then a costly and time-consuming re-collection could be ordered by the court.  

Take advantage of data filtering.  The primary functions of the processing stage are to convert the ESI into the format required for review and to filter out as much of the irrelevant data as possible.  The most common methods of reducing ESI include the following:

  • Date range filtering: Allows the reviewing party to collect the ESI from a specific, relevant time frame.
  • Application of search terms: This can be tricky since one never knows how successful the terms will be until they are actually applied.  Obviously, the more that is known about the litigated issues, the more successful the culling process will be. 
  • File-type culling: There are a number of file types that are generally regarded as irrelevant, such as system files and executable files.  In addition, counsel may deem specific file types, such as video files, as irrelevant for the review.
  • Data analytics: Analytics allow the legal team to identify issues and relevant documents prior to processing by giving the legal team a sneak preview of the data set.  Costs related to analytics are far outweighted by the savings in big data cases.
Successfully implementing these culling strategies before processing and review can narrow a relevant ESI set by more than 80 percent and save millions of dollars in review time.  Instead of reviewing duplicitous and irrelevant documents, the review team is focused on only the doicuments that matter to the case.
The goal in any complex, multi-jurisdictional matter is simple--collect once, process once, review once, produce many.  To achieve that goal the client must engage experience resources early in the discovery process and identify what issues- good or bad- must be addressed during the course of the litigation. Identifying those challenges in the earliest stages of discovery is critical as companies try to reduce the risks, costs and time associated with the discovery process.