It goes without saying that all discovery exercises now involve greater volumes of information than ever before. One of the consequences of this can be the problems with the considerable increase in the amount of irrelevant information there now is.
It is also widely acknowledged that the review exercise in the eDiscovery process equates for about 70% of the cost of any eDiscovery exercise. Much of this cost is the result of lawyers having to spend considerable time (and their clients’ money), reviewing documents that may be completely irrelevant for the proceeding.
How do we get to what really matters?
The objective of any discovery exercise should be to facilitate a method of getting to the most important information quickly, cost effectively and accurately.
Lawyers do not want to have to spend their time reviewing substantial volumes of documents that may be completely irrelevant to the proceeding. Lawyer’s time is valuable and can be costly, so it is important to ensure that they invest their time on information that requires their legal expertise to assess relevance.
Lawyers still have to look at documents, but we can do a lot more to assist lawyers look at more potentially relevant material. This can be achieved by investing more time in devising a method to remove irrelevant material.
I often come across the argument that ‘there are far too many documents to review’. Yes there may be considerable volumes of documents these days, but they do not all need to be reviewed if you invest the time developing a strategy and methods to identify the most important documents.
Invest the time in a strategy at the outset
On all matters it is important to develop a strategy at the outset that can assist the legal team to focus on what really matters. The strategy should assist you get to what you want, and do so quickly, cheaply and accurately.
Part of this strategy may involve the likes of isolating key individuals, a date range or running search terms. These are often a start to be more targeted, but they can also present many challenges themselves.
It is important with whatever strategy you have to not set in stone a path prior to having a look at the information that is there.
What if the ‘goalposts’ change?
Many decisions are made prior to ever looking at the information. Far too often a discovery order is agreed as part of the Joint Memorandum prior to the first Case Management Conference, whilst very limited (if any) documents have been looked at.
Important communications may have taken place between different individuals than those initially identified, or outside of the date range that you thought was important. The search terms that you devised, might not have been the terms that were used in the communications, or produce information in a different context or of more concern miss important information.
Running search terms alone will not be sufficient to get to what you really want. It is important to be able to test and sample those search terms and refine the search terms if necessary. Only when they are used effectively will they be one of the tools to accurately isolate irrelevant material and help get to the information that matters most.
Those that have invested more time at the outset of a matter (taking a look at important documents, identifying key individuals) will be in a more informed position prior to agreeing the discovery order.
Investing the time at the outset, consulting with an expert can help you devise methods that can remove vast volumes of irrelevant information.
