Stages of the eDiscovery Timeline and Methods to Reduce Legal Spend
What is Needed?
Firstly and critically, bring the technology skills in early and make managing the technical side of the litigation process the job of someone who has a deep understanding of both the legal task and the technology involved.
These are the stages ELMS can assist with:
This phase is very important in the timeline and identifies the document landscape. Working closely with the Client’ IT department and the witnesses, the discovery specialist and legal team work to understand the:
- client’s infrastructure;
- document management systems including project databases;
- network drives and how they are used;
- email and email archiving systems;
- document management and email policies;
- technology processes and procedures in place;
- specialised software used on projects;
- hard copy storage and archiving processes;
- documents produced for the project that relate to document flow eg Design Management Plan;
- document types relevant to / created for the project;
- document control procedures and processes; and
- technology upgrade plans.
It also enables the discovery specialist to identify any risks associated with the documents for example altered dates on documents which affect the document date in the litigation database.
Law firms tend to over identify the number of documents to be collected. ELMS can assist by suggesting ways to reduce the volume of documents by asking the legal team to identify documents which would definitely not be relevant to the case. This is an easier task for them to undertake rather than identifying which documents they want to collect.
ELMS will assist the legal team to intelligently target and collect only the documents they need – do not over collect or under collect documents. If you over collect documents it will cost more in storage and legal review time, if you under collect documents problems will arise where you cannot locate documents to support the case leading to possible re-collection or worse.
When collecting documents consider collecting information about the file structure the documents were in prior to being collected so that you can replicate that structure which will make it easier for clients and the legal team to identify documents quickly and accurately in the litigation database. This will reduce the amount of time searching for documents in the database.
This phase sets up the documents for use in the database. Each litigation database works a little differently and consideration needs to be made in this phase if you are going to use predictive coding, email threading, etc. Each piece of software deals with these analytical tools differently and this needs to be considered at the processing stage so you can ensure you have the correct output of data to utilise these tools in your database.
Legal spend can be reduced in this stage by negotiating lower per Gb processing rates.
Storage of Documents
If you have the option of utilising corporate infrastructure and purchasing power you can drive massive cost reductions on storage. This requires a corporation’s willingness to utilise their resources for the storage of the litigation database and documents. In addition, you will need an experienced discovery specialists to help guide your in house IT team through the many phases of importing and exporting data if you are intending on completing those tasks in house. If not then you would need to be provided with sufficient access to the eDiscovery experts to complete these tasks. This solution does require a substantial amount of project management time to ensure that the processes involved run smoothly and deadlines are met.
If you are storing documents with your eDiscovery provider you will need to negotiate a rate that is acceptable to your client.
Preparation of Documents before Legal Review
This process deals with putting structure back into the documents and putting some context around them as you would have in a hard copy environment. For example, if you are looking for all of the minutes relating to a particular meeting you go to your bookshelf (or the folder in your Inbox) and pull out the folder that contains those documents. This is what we try to achieve in the database to assist the legal team to get across the facts faster.
There are many processes in this phase where you are able to reduce the volume of documents or categorise documents in order to reduce legal review time. In addition, it is important to assist the legal team in training the paralegal staff appropriately so they can quickly understand who are the key witnesses, who are the in house counsel for privilege considerations and what are the common phases or terms used by the project team.
The most effective way to reduce legal spend is to NOT do a linear review of documents. Linear review is the process whereby the legal team reviews each document in chronological order from beginning to end. There are many problems and solutions to overcome the issues with the linear review process. One of those solutions is TAR (technology assisted review), Predictive Coding or CAL (Continuous Active Learning).
Predictive coding is effective because the legal team will review the most relevant documents first and the documents become decreasingly relevant. The legal team will be able to set parameters for the percentage of documents that are becoming irrelevant and then decide whether they will review the rest of the documents or not. Quality checking can then help you make sure that everything relevant has been captured, and the legal team can review the remaining documents in due course (generally last) so they satisfy themselves that they are not relevant, but do not waste time reviewing the least relevant documents up front.
These types of technologies are very complex in nature and will require the correct team of people in order to make the process successful and defendable in Court. Electronic discovery experts should always be called upon for assistance. It is important for the legal team, guided by a discovery specialist, to understand to a certain level what the technology is doing to identify any errors in results and assist the technologists to correct the errors and move on. Predictive coding is only as good as the lawyer who is deciding on the relevance of documents and is consistent in those decisions. It is not the answer to all of your problems it is just a tool to rank documents into order of relevance based on the decisions made by the legal team. If those decisions are inconsistent across the legal team then this could cause an issue if your predictive coding tool is not able to handle this scenario.
There are many analytical tools which can assist the legal team in reviewing documents intelligently and logically and help them understand what is in their data set quickly. These tools can substantially reduce the amount of legal review time therefore reducing legal spend.
Disclosure / Discovery
In order to reduce legal spend in this process you will need to ensure that your index and documents comply with the Protocol for Exchange of Electronic Documents. If documents don’t comply with the Protocol for Exchange of Electronic Documents, the legal team will spend many hours corresponding with the other side and possibly head to Court if the issues cannot be resolved.
Presentation of Documents to Counsel, Experts and Witnesses
If the law firm prepares well categorised and indexed documents in consistent format for the barristers, experts and witnesses, this will further reduce the amount of document management time required by them and will in turn, reduce legal spend.
In addition to providing briefs to barristers, experts and witnesses in hard copy they should also be provided electronically. Producing a fully text searchable hyperlinked set of documents, will allow the barrister to either search within an individual document or across the entire set of documents and can reduce the number of hours a barrister would take to find a particular piece of text in a set of documents and therefore reduce legal spend.
There is a misconception that setting up an eTrial is a big deal when it is not. It is an increasingly common view that conducting an eTrial will save up to 1/3 of trial time. When you consider the costs in the room with the barristers and solicitors this can be an enormous amount of money.
Real time transcript and software is another way to reduce legal spend in Court – the benefit of using real time transcript and software is that you can mark up the transcript as it is spoken as opposed to doing it back in the office after Court. You can have a junior barrister reviewing the real time transcript back in their office and preparing closing submissions throughout the trial for the senior barrister to review and settle at a later stage. This can save many hours in both barrister and solicitor time and will reduce legal spend during trial.
It also improves the quality of cross-examination, and re-examination of witnesses, by being able to check what was asked or said ‘on the spot’.
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