The NZ E-Discovery Blog  Facilitating proportionate and efficient e-discovery

Myth 1 – Using non-eDiscovery tools for eDiscovery

May 6th, 2021

“Why do we need dedicated eDiscovery software?”

This is often a question I am asked, and more than what I would think.

I find most of those asking these questions have not had experience with eDiscovery software – and yes, there are still many that have not, or if they have, they have very limited use of. This is coupled with them usually only seeing the purpose of eDiscovery software as producing the documents in an electronic format to comply with the court requirements. Obviously this neglects the true value of eDiscovery software with many of the earlier more important parts of the discovery process, and beyond.

Too-often what I would call non-eDiscovery tools (e.g. Outlook, Adobe or a Practice Management System ‘PMS’) are being used to address the discovery process. The rationale is most have ready access to these options, so for some why not extend its use to tackle the discovery process.

If this sounds familiar, then think very carefully.

It is simply a myth that these tools can effectively be used to tackle eDiscovery.

Very simply, these tools are not designed to organise, filter, review and produce documents for discovery. They do not have the features to conduct discovery efficiently, effectively or accurately. Using these tools will mostly add greater cost and burden to the process.

Let me explore some of the potential issues with some of the non-eDiscovery tools that some choose to use for discovery.

Outlook or email software

Emails make up a large part of most discovery exercises, although conducting eDiscovery in Outlook or a similar program is not suitable for discovery.

Whether it be incomplete searching or dealing with multiple custodians – all of the data should be in one repository to perform these tasks across all of the data. There will be no unique identifiers to distinguish documents, whilst identifying duplicates will usually be a manual process.

Producing documents from Outlook is complicated, not least the issue of not being able to number your produced documents – i.e. your discovery set.

This is all without considering the crucial issues of preserving data and potential spoliation of that data.

Adobe, or a similar PDF tool

Similar to Outlook, Adobe (or any other similar tool), also creates many headaches.

There is no way to preserve or use the original metadata of the documents that you converted to PDF. I have articulated previously, a PDF is essentially an image of a document, and converting documents to PDF may lose important metadata contained in the native electronic format of that document.

Redactions can also be an issue, as they are not always burned in, requiring the metadata to be removed. Far too often there are notorious examples of redactions not being performed correctly in the discovery process – show me any lawyer that wants to be the one faced with this issue !

Practice Management Software (PMS)

Many firms are using a PMS to undertake the discovery process.

I know for some they have the practice of ‘filing’ all documents in their PMS or document management system (DMS), but this can be problematic for the discovery process.

I have been surprised of late with the number of firms that involve their PMS/DMS system in the discovery process. Most discovery documents are your clients’ documents, and do not all need to go into your PMS, in many respects this is just double handling work that should be performed in any eDiscovery software – without having any of the required functionality of the eDiscovery solution.

All PMS do not have the functionality that is available in eDiscovery software, that greatly assist the litigation workflow. Just as an eDiscovery solution is not designed for practice management, a PMS is not designed to undertake eDiscovery.

Only adding unnecessary burden and cost

With all of these tools you can get by especially if the volume is only 100-200 documents, but can anyone really say they ever have this volume when they start the discovery process these days. Even on the smallest of matters these days, there will usually be a 4-5GB of email data alone (i.e. this can easily be 10K+ documents), to start navigating your way through. The final discovery on occasions could be 200 documents, but how to get to them through the volumes of irrelevant material is the challenge !

Sure, these tools may be readily available for many of us, but it is a myth that they can be used effectively for eDiscovery. If they are used, they will inevitably add unnecessary burden and cost to the discovery process.

Most clients would expect their law firms to either have eDiscovery tools, or at least have ready access to an effective option if the need arises.

There may be no cost as far as the hosted cost of the eDiscovery software, but there will be wasted time cost of using these tools – together with simply not having the functionality for you to effectively undertake your discovery obligations.

Again we need to ask ourselves – how can we do this better? A great start is exploring the use of dedicated eDiscovery software on your next matter !

 

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