The exponential growth in the sources and volumes of electronic information is making the discovery process more challenging. There is a greater intersection between the law and technology with eDiscovery an unavoidable part of any litigation or investigation.

For some eDiscovery has simply meant turning documents into an electronic format. Managing electronic information in the same way as we did paper documents, does not ensure that discovery is proportionate and cost effective.

Information explosion

Electronically stored information (ESI) has expanded, not reduced, the volume of material which needs to be considered for discovery.  Technology allows communication on a wider basis.  Conversations that in the past were conducted by telephone or informal meeting with little or no documentary trail now can result in an email trail between multiple people in multiple locations with multiple attachments.  The obvious result of this is that where in the past a discovery file might be reasonably limited, files can now frequently consist of ESI numbering in the thousands of individual “documents” or files. 

ESI can be gathered from a variety of places and formats.  Many documents are never printed.  Cell phone records showing a pattern of calls between individuals may be important.  Relevant texts, tweets, blogs and even Facebook postings might be available. One of the most important sources is metadata. This is data about a file which is not seen on the face of a document but is embedded. It can identify when a document was created, by whom and when it was accessed or edited.

The entire eDiscovery process continues to become more complex through these evolving issues. These challenges are increased by the greater pressures from both the courts and clients to ensure discovery is proportionate and cost effective. With the increasing volumes of information it is becoming increasingly difficult to get to the key information quickly and cost effectively, especially if traditional practices are used to address eDiscovery.

Upfront investment – early planning is essential

Greater investment earlier in the proceeding will help identify the most effective approach that is tailored to suit the requirements of the matter.  There is an expectation of more front loading of work under the High Court discovery rules, but this work will pay dividends later in the proceeding. .

All matters are different, so it is important to understand your specific requirements, together with devising the most effective strategy to identify, collect, review and produce the information. Even small matters that appear straight forward can often become complicated and costly due to not spending the time at the outset planning an appropriate strategy for the matter.

The court now expects parties to know more about their information at an earlier stage to enable them to assess proportionality on all matters. Parties are now expected to identify – 

• who are the key individuals in the dispute;
• what you have and where it is located;
• what is important to the matter in dispute; and
• how this information can be provided in a method that is accurate, efficient, and cost-effective.

Identification and collecting information from the client

The process of collecting information from a client may have previously simply involved a request to the client to provide all ‘relevant’ information. More attention is now required to what is being sought and the method of collecting the information from the client.

Prior to commencing a dialogue with opposing counsel it is beneficial to be more informed about your client’s information. This information will assist with working through the discovery checklist and the scope of discovery.

The important questions commence with what you may have and where it is? If this information is difficult to identify, then the cost of locating and retrieving the information will continue to escalate. An eDiscovery questionnaire or checklist to work through with the client and their IT representatives can be beneficial in finding out about the information held by the organisation. Any problems identified may be important in agreeing the scope and reasonableness of the discovery exercise.

The identification and collection process may require forensic expertise, although in most instances a carefully planned and documented approach with the aid of a questionnaire may be all that is required.

Transforming the way we review documents

Document review is still the largest cost of any discovery exercise.

As the document volumes increase solely relying on humans to ‘eye ball’ every document is no longer possible.  The paper based model required juniors to spend hours investigating and collating material. Much of this work can now be done more effectively by combining eDiscovery tools and strategic advice on cost effective practices.

Early Case Assessment (ECA) tools can assist early in the process. The ECA software will provide lawyers with an informed position (by looking at documents and associated metadata) as to who may be the key people and identify important date periods. The software will provide information about who may have been communicating and assist in identifying if there are any gaps in the data collected. ECA tools can be beneficial when looking to agree the scope of discovery with other parties.

On many occasions the volume of documents can be reduced by using culling techniques to filter the information. This may include applying specific date ranges, prioritising key individuals or if appropriate using search terms to isolate important information.

Problems with keyword searches

Traditionally lawyers have turned to keyword searches in an attempt to reduce the document volumes. The reality is that keyword searches frequently do not produce the results expected, and more importantly parties are often unaware of the limitations of keyword searches.

Keywords create a black or white scenario – a document is either in or out – a document either contains the selected word or it doesn’t. Running search terms across a set of documents may reduce the volume of documents to review, but it could mean that many relevant documents are missed if the keyword does not result in a ‘hit’ in a document. Alternatively the search terms may produce many irrelevant documents that may have different meanings to that intended.

Too often the search terms are produced early in the process and without looking at the documents to assess the viability of the terms. With all search terms it is essential to sample and test the terms to ensure they are producing the results you intended, prior to commencing the document review.

Embracing more sophisticated review options

One of the main costs associated with the document review is having to review irrelevant or redundant information. More effective methods have developed that can significantly improve the effectiveness of the document review in terms of speed, accuracy and cost. Some of these options include –

Predictive coding is technology that analyses the decisions of a human review of a sample set of documents. The software then prioritises or ranks the remainder of documents based on the decisions made on the sample documents. The documents can then be reviewed by lawyers, usually identifying the key documents first.

Concept searching is a search which attempts to match results with the query conceptually, rather than just by identity or similarity of words. The method searches files based not on keywords, but on the subject matter of the document, paragraph, or sentence. Concept searching is different to keyword searching which requires a particular word to be located in the document. Concept searching adds additional information to the very basic keywords, as it evaluates both words and the context in which they appear.

Clustering technology is the grouping of documents by identifying conceptually alike documents. The technology breaks the documents up into groups of similar documents (e.g. by similar concept, content or subject). The technology is calculated through the mathematical relationship between the text content of the documents.

Email threading is technology that allows the identification of related emails in a thread and can identify the email “endpoint” and further unique emails in a thread.  As the majority of information for discovery purposes is currently email, email threading technology is essential to respond to the issues presented by multiple email chains. By identifying the endpoint of the email chain, redundant emails do not have to be reviewed, as the same emails can all be reviewed at the same time.

Near duplicate technology identifies documents that have similar content, although are not exact duplicates. The near duplicate technology groups all of the near duplicates together so they can be reviewed at the same time, which allows the reviewer to quickly focus on the differences and move through the documents more quickly and accurately.

All of these processes are expressly identified in the checklist of the High Court discovery rules as options to consider.

With all of these techniques (including traditional culling by keyword or date ranges), it is important to have an iterative process that involves testing and sampling of the approach.

Benefits of sophisticated review options

By using these techniques to either group similar documents together or prioritise documents, lawyers can expedite the document review exercise. These tools can significantly accelerate the document review exercise when compared to a more traditional linear review process that would usually involve reviewing ‘document by document’.

Utilising these options will reduce the volume of documents that require lawyers to review. At the same time the technology will allow irrelevant material to be quickly isolated so the most important information can be looked at first.

New Challenges

The eDiscovery process does present the legal profession with new challenges and requires new skills. These challenges require practitioners to have a greater grasp of electronic and technology issues. If electronic discovery is not conducted properly it can result in unnecessary and wasted costs.

To reduce the disproportionate costs of the discovery process and ensure it is cost-effective from both the client and the lawyer’s perspective, it is important to make better use of technology to get to the information that matters most.  Even if lawyers are not currently using these tools and practices, it is critical that lawyers familiarise themselves with these processes.

This article was originally published in the December 2013 issue of At the Bar