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Posted on: March 16, 2016

in Blog

Why Data Analysis Must Be Implemented on Every Case

This post explains how and why case teams should perform data analysis at the beginning of even the smallest eDiscovery projects and provides case studies to prove ROI.

Data analysis is one of those litigation support terms that mean different things to different people. Regardless of what you call it, data analysis is a strategic workflow that allows legal teams to assess electronically stored information (ESI) to make the document review more cost-effective. It should be done early in the eDiscovery process and it should be done regardless of the size of the case. Here’s why: As discovery costs continue to increase, legal teams must manage the cost by analyzing the ESI prior to any processing or review.


What is Data Analysis? 

As it relates to eDiscovery, data analysis is best described as a preliminary and high-level data assessment that answers important questions about ESI. Case teams can use data analysis workflows to quickly identify options for preparing and working with ESI and to address potential challenges that could have far reaching repercussions if not resolved early enough in the discovery process.

 Data Analysis Is Not…

  • Meant to replace in-depth custodian interviews and questionnaires
  • Meant to replace agreed-upon preservation or collection protocols
  • Meant to replace case team due diligence when identifying ESI
  • Meant to replace or be interchangeable with ECA, attorney early case assessment of litigation risks
  • A “one-size-fits-all” analysis of ESI
  • When eDiscovery starts.

 Why Is Data Analysis Important? 

In our experience, legal teams often ignore or avoid any data analysis. Too often, they rush into processing and review without a significant understanding of the content of their ESI. This avoidance is a disservice to clients and staff. Data analysis is an activity that yields significant cost savings to the client. With good tracking and reporting, the return on investment (ROI) can be proven in every case.

We see legal team spending on discovery increase unnecessarily when issues with ESI are uncovered too late in the eDiscovery process, requiring work to become reactive instead of proactive. While remediating these issues, we find almost uniformly that time and expense of remediation could have been avoided had data analysis been performed on ESI at the beginning of the project. We find this holds true even in the smallest eDiscovery matters.

Courts and state bar rules both require attorneys to be competent when managing eDiscovery. Knowledgeable clients are demanding it of their outside counsel. Insurance companies who cover litigation costs closely scrutinize the plans for data analysis and reduction before they approve eDiscovery expenses.

 Data Analysis Answers Ten Key Questions

  1. What is the total volume of ESI
  2. What kinds of files are included in the ESI? 
  3. Are the sources and types of ESI what the legal team expected? 
  4. Are the source and type of the data consistent with client or agreed-upon ESI preservation, collection and production protocols?
  5. Are there any types of ESI that will negatively affect processing, review, or formatting of the ESI later in the eDiscovery process?
  6. Are there any non-standard data types such as internet files, mobile device data, or MAC data that need to be handled in an alternative workflow?
  7. Is the ESI consistent with the legal team and client’s expectations for scope and budget?
  8. Is the ESI consistent with the anticipated production workflows, milestones, and deadlines?
  9. Are there types of files that without question should be excluded from eDiscovery processing?
  10. Are there sources of ESI that should be phased into or even excluded from eDiscovery processing?

Case Studies: Success and Impact of Data Analysis

Case Study – Opposing Counsel Production Delivered on Hard Drive

Client received external hard drive from Opposing Counsel containing 5,000 bates numbered PDF files for review. Load files, searchable text files and metadata fields were not provided.

Data Volume: 11 GBs
Solution Using Data Analysis: Instead of processing the native PDF files for review as originally requested by client, one to two hours of data analysis was performed to determine if the production deliverable adhered to the agreed-upon production protocol.
Savings, Benefits & ROI: In addition to confirming an incorrect production format, data analysis also identified within the PDFs bad document breaks and document boundaries. Individual PDF files contained hundreds of different documents all within one single file. If the PDF files were processed as received, document review would have been extremely difficult and expensive and analytics workflows already in place would have been negatively impacted.

For less than $500, all production issues were identified and a properly formatted replacement production was received by our client from opposing counsel. Our client saved thousands of dollars in unnecessary processing and review costs. Document review was enhanced through better quality searchable text and accurate document breaks.

Case Study – One Terabyte Preservation Collection

Client performed full computer forensic image preservation collections of laptops and mobile devices when a litigation hold was implemented. Two years later, the litigation moved forward and the legal team needed to identify all relevant ESI for search, processing, review and production.

Data Volume: 973 GBs
Solution Using Data Analysis: Ten hours of time was approved for data analysis and reporting. After applying filters for custodians, file types, and file source and path, our client managed to reduce the necessary set of ESI to 64 GBs of potentially relevant data for review. This filtering was conducted prior to any processing taking place.
Savings, Benefits & ROI: Due to the high rate of data reduction during data analysis and assessment, the client was able to complete processing, review and production for approximately $15,000. If all 973 GBs of ESI had been processed for review, the processing alone could have exceeded $150,000.

We know that clients and legal teams are often pressed for time in making decisions about eDiscovery and review technologies. Gone are the days of sending ESI through the discovery process without looking at it first. There is no good excuse based on time, expense, or limits to technology for NOT analyzing data after collection.  There are many cost-effective solutions available to case teams to perform a valuable data analysis. Even those with small projects or with limited technology budgets have data analysis strategies available to them. 

Initial data analysis should be performed in every case. There is no reason whatsoever for attorneys to not incorporate some form of data analysis into their everyday eDiscovery workflows. If data analysis continues to be ignored, attorneys could lose their competitive and tactical advantages throughout discovery.  As courts, clients, and the legal profession itself demand competence from counsel, the initial data analysis provides counsel with the knowledge needed to succeed with eDiscovery.

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