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Posted on: January 12, 2017

in Blog

5 New Year's Resolutions from an Experienced eDiscovery Team

With each New Year comes a plethora of new gym memberships, healthy eating, better budgeting and countless other goals that individuals set for the upcoming 365 days. Setting either personal or professional resolutions should take in account the previous year, to help identify areas that need progress.

The concept of identifying areas for improvement and devising a plan to revamp old habits can be applied to eDiscovery too. The start of each year is a perfect opportunity to think critically about current workflows and make a plan to improve them. Every person, organization, data set, and eDiscovery process is different so it can be difficult to figure out where to start. To help, we’ve asked our Discovery Engineering Group what their resolutions for the upcoming year are.

These resolutions are a behind the scenes look at the steps eDiscovery experts are taking to improve workflows, in order to help you devise a better plan for 2017.

Preparation and Planning Phase of eDiscovery

1. Analyzing Data Before Creating a eDiscovery Plan

Chuck KellnerSVP & Senior Consultant, Discovery Engineering Group

I resolve to look at all the ESI that arrives from clients before issuing instructions for filtering and processing. A wise man once said, “No eDiscovery project plan survives the arrival of the ESI”. Over the years, I have found this statement to be more often true than not. 

In one recent project I received 150 GB on a hard drive, for which the law firm client expected half of it to be ESI and the other half software and system files. It turns out that the client’s IT did not collect all of the user files we expected. In another example, the in-house counsel said she had 3 Terabytes of ESI for a particular matter. The volume was confirmed by her IT staff and another service provider assessing the project. By interviewing business clients, we were able to cut the volume to half a terabyte. In yet another more common scenario, the 20 GB per custodian we expected for eight custodians turned out to be more like 400 GB instead of the expected 150-200, because the client IT people sent us file share data and what turned out to be additional backups, “just in case”.

Even if our own collections and forensics team is collecting the ESI, we want to make sure that there is a good match between the ESI we see in the collection matches what the client expects to see. For example, we don’t want to be surprised by large enterprise database exports or compound graphics engineering files.

It's always good to pause, evaluate your data, and make a strategic plan. This can also be done after processing and before review - download this short guide that will walk you through how to create a defensible review workflow based on your data.

Most eDiscovery projects are planned and priced before data has been collected or thoroughly assessed. The project plan and cost estimates are typically based on assumptions. To avoid surprises, make sure that the ESI matches the client’s expectations, and make adjustments as necessary, either to the contract or the project plan. Make sure you understand what kinds of ESI you need for the case.

2. 4 Tips to Preparing Your Customized Coding Layouts

Amanda Bergeron | Consultant, Discovery Engineering Group

I resolve to work more closely with clients that are gearing up for a document review regarding database customization, particularly coding layouts.

In some recent large-scale reviews, I’ve seen coding layouts as simple as a Responsive/Not Responsive choice, all the way to a long series of primary determination choices and 60+ issue and sub-issue tags.  I’ve still yet to put my finger on how there is such a disparity in the extremes I’ve seen in coding layouts, but the following I believe to be golden rules to consider when customizing a workspace in anticipation of review:

1. Before constructing a coding layout and starting review with a team, sample some documents and get a sense of what will be required to effectively review the ESI: I’ve seen plenty of coding layouts constructed before anyone has set eyes on a single document. To avoid changing choices once review has begun (which could be disastrous, see point #4), sample some records and make an educated plan on how best to set up your coding layout.

 2. The more calls a reviewer has to make on a single record, the slower the rate of review will be: While this is not news to anyone, you’d be surprised just how granular some clients get with the choices a reviewer can make on a single record resulting in often times significantly increased cost and time.  Consider condensing as many choices as possible to reach a streamlined and effective coding layout.

 3. Too simple doesn’t always get the job done: I’ve seen plenty reviews continue into 3 and 4 passes by different review teams due to the lack of choices available during a first pass.  There is a happy medium when constructing a coding layout, make it efficient without losing substance.

 4. If you need to make changes to your coding layout, do so as soon as possible: I’ve been part of reviews where weeks into a project a client is asking to change and delete choices in a layout. This can be dangerous to do mid-stream as you may need to re-review records resulting in increased time and money, but also you may inadvertently mis-tag a record during the mass change and find yourself having to clawback a production volume.

Customizing hosting platforms is a huge selling point in the latest and greatest predictive technology, and for good reason. However, too much of a good thing can be bad. With the big picture in mind, head into workspace customization with eyes wide open and don’t let countless available options distract from the all-important end goal, which may be achieved with some straightforward choices.

Improving Communication Throughout eDiscovery Projects 

3. Proactively Communicating with Clients Prior to ESI Negotiations

Olivia GerrollVP & Senior Consultant, Discovery Engineering Group

I resolve to proactively engage clients at the start of all projects in order to provide the necessary information around appropriate ESI requirements in support of: 

  • Negotiations with opposing counsel
  • Meet and confer preparation
  • Client collection coordination
  • and production requirements

In several recent experiences I received production protocols and requests for information pleadings. Some of which were in drafting stages, others had been previously agreed to. Working with the clients who had draft documents allowed us to get in front of the process. Providing the necessary instructions and advice resulted in arming the client with the necessary knowledge and relevant information to effectively negotiate with opposing counsel. 

The result generated more focused collection efforts, as well as streamlined review and production processes. For those that had already agreed to the collection and production requirements with limited knowledge, the results generated either an “over” or “under” collection effort, production issues, or search and review challenges.

It is critical to understand the pros and cons of ESI negotiations. The lack of understanding is not a defense. Flaws in understanding what ESI should be collected and the methods of production result in higher costs and production challenges. Simply spending time up front, discussing where the negotiation processes stand, ask the questions and provide answers can significantly help the project. 

4. Increasing Collaboration Throughout Processing, Review and Analysis

Rafe Stanley | Consultant, Discovery Engineering Group

To help alleviate this burden on the teams and make sure this pivotal step to discovery isn’t mishandled, I have identified several pain-points that I resolve to root out and work through.

Sharing Knowledge

A lot of times a review team is unaware of the decisions and discussions that led to the current disposition of the database. Review project managers (PM) may make an erroneous “tech issue” report because of slip-sheeted documents or may not understand that Excels are being redacted in a separate workflow. This lack of understanding can bog down communications between parties, lead to a mass of incorrect coding decisions, and can be frustrating for all parties involved as the teams play “catch-up” on the details. I resolve to alleviate this by getting review PMs involved in substantive discussions as early as feasibly possible and stepping in to liaise between the parties when needed to help promote proper decision-making and share knowledge of the workflow.

Transparent Communications

When working with so many parties, it can become difficult to determine who has the authority to change a workflow or make a decision. If all parties are not copied on all emails then it becomes very easy for a team to lose track of important decisions or changes mid-project. Additionally, teams are often reticent to admit a lack of understanding. I resolve to insure our teams are informing all parties of substantive changes to the workspace, to loop in any interested parties who are not aware of a discussion, and to remember that all it takes to better understand a request is to hop on the phone and ask a question.

Set Realistic Expectations and Deliver on Them

Deadlines and work stoppages are often a concern as the parties gear up for production. With our teams playing gatekeeper to all the hosted data, it is usually imperative that we are open about timelines and expectations. I resolve to let all teams know what is feasible based on the resources available and to inform all parties of how their workflows and decisions will affect the deliverable. By doing this I hope to manage expectations and allow our clients to make truly informed decisions about their data. 

Lower the Cost of Review by Leveraging Advanced Technology

5. Avoid Slower Review Times and Increase Cost-Savings with Analytics

Charles Roberts | Consultant, Discovery Engineering Group

I resolve to make sure clients review no more documents than are necessary by leveraging advanced tools.

The most expensive part of eDiscovery is document review and every effort should be dedicated to reduce the review population to the defensible minimum. Too often, data reduction ends at date filters and keyword searches. While it is satisfying to see 80 gigs (400,000 or so documents) get reduced by 75% down to 100,000 documents, there is still more to be done.

1. A good contract attorney will review 57 docs per hour at an average hourly rate of $32.50 in one of our national delivery centers. That’s $0.57 per document reviewed. Instead of talking about percentage of data, number of gigs, or even number of docs any additional document reduction techniques will save, I will start talking about money saved.

2. Clients readily agree, fewer documents is better but they are cautious about what it will cost to run and analyze the results of the advanced tools. At $60 a GB, or $.012 a doc, the tools need to cull an additional 2% to break even, anything after that is saving money. Email Thread Analysis is nearly certain to reduce the typical document corpus by 10%. After the initial 2%, the remaining 8% saves $279 per GB. Near-Dupe, Concept Clustering, and Predictive Coding/Review are all paid for and can only save more money.

3. Besides saving money, spending time reviewing fewer documents means a more consistent and higher quality of review so more manpower spent working with documents that go directly to the merits of the case.

Just like the age of paper-only based reviews, digital reviews without the use of advanced tools also needs to go away. Besides saving money, no one wants to spend time re-reading the same email chain over and over again to make sure there are no changes (Email Threading), looking at the same document over and over again (Near-Dupe), re-visiting keywords (Concept Clustering), or reviewing non-responsive after non-responsive document (Predictive Coding/Review). 


Final Thoughts

Whether you’ve resolved to burn off those holiday cookies at the gym or make strategic eDiscovery decisions, the New Year is filled with opportunities to improve. Make your goals achievable, and hold yourself accountable! There is no better time to reevaluate your historic processes and make changes in how you prepare, communicate and lower eDiscovery costs


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