As seen by this survey result, the COVID-19 pandemic has certainly impacted organization budgets across the board. At the same time, we have already started to see increased litigation as a result of the pandemic. So, how does an organization manage an increased litigation workload on the same or less budget? Here are four best practices I ran across that I liked from process to machine learning about which I will provide my own thoughts and observations.
Brian Schrader, President & CEO of BIA, just published these tips in KM World (4 Practices to get your e-discovery process recession-ready), so below are his list of four practices with my comments:
Make eDiscovery a standard business process: If you read this blog regularly, you probably already know this one and have done so (or at least understand the importance of doing so). I particularly liked Brian’s comment here: “Think of the process as being similar to any other continuity plan you have in place. It should include step-by-step instructions for everything from initial legal holds to producing final documentation in court. The plan should be well documented and shared with key members of the organization so that each person understands their role.” Want a good book to read to help with that? Try this one from Mike Quartararo – the guy who literally wrote the book on project management in eDiscovery.
Consider remote collection and custodian questionnaires: This was already becoming very important before the pandemic – it’s now vital since the pandemic began. With eDiscovery professionals not looking to get back into the office anytime soon, the eDiscovery collection market may never be the same and so much more of it has started to be conducted remotely. One notable provider recently stated that less than 5% of their collections today are done on-site. So, it’s important to develop and continue to enhance questionnaires for remote collections from your custodians. They’re not coming back into the office anytime soon. Oh, and good questionnaires help assess custodians from a proportionality point of view as we discussed in this recent webinar.
Avoid the collection of unnecessary data: In that same webinar, we unveiled some Big Data stats that illustrate how much data organizations are dealing with in today’s world and Brian provided another one in his article – by 2025, it’s estimated that 463 exabytes of data will be created each day globally. How much is that? Over 463 million terabytes – per day!! Historically in eDiscovery, the data has moved to the technology, but more and more, the technology will have to move to the data to identify more precisely what’s potentially responsive and only move that forward. Good processes and better technology will help organizations keep those collection costs manageable.
Leverage machine learning for document review: Brian quotes the 2012 RAND study that states that 73% of all eDiscovery costs are spent on legal document review. It’s gone down, but not much – Rob Robinson’s Complex Discovery annual market Mashup from last year estimates “review-related software and services…to constitute approximately 69% of worldwide eDiscovery software and services spending in 2019”. It also noted that “[w]hile the percentage of spend is decreasing over time, the actual dollar spend is estimated to increase based on overall software and services market growth.”
So, review continues to be the most expensive phase in eDiscovery (by far), yet the 2018 ABA Legal Technology Survey Report (released in early 2019), stated that only “12% {of lawyers responding to the survey} report using predictive coding to process or review e-discovery materials”. Think, McFly, think! Predictive coding and machine learning technologies have been proven to provide results as good or better than manual review at a much more efficient and cost effective manner. If you want to reduce eDiscovery costs, start with the biggest one and use proven and court-accepted technology to do so. Makes sense, right?
Also, just a reminder that, on Wednesday, August 19th, HaystackID will conduct the webcast On the Case? eDiscovery Case Law Update for the First Half of 2020 at noon ET (11am CT, 9am PT). In this presentation, I will be covering key case law developments during the first half of 2020 – along with Ashish Prasad, Vazantha Meyers, Todd Haley and Seth Curt Schechtman of HaystackID – to identify important rulings that may impact how you conduct discovery going forward. Don’t miss it!
So, what do you think? Are there any other best practices you would suggest to manage eDiscovery costs in today’s pandemic influenced world? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.