Introduction to E-Discovery: Technology (Part 4 of 5)

It’s pretty easy to execute a Google search on “e-discovery” and immediately become overwhelmed by the amazing volume of information available. Where should you begin reading? What’s fluff? What’s not? What’s educational? What’s marketing jargon? Over the next few weeks, we’re going to dedicate MONDAY mornings to reading about electronic discovery basics. Each week, look for a new post to learn about e-discovery without becoming overwhelmed.This  week, we continue our series on technology used to support e-discovery with a few resources for you to learn more about ESI Review & Analysis.

REVIEW

Definition

A good working definition for document review is a task completed by attorneys to determine which documents (electronic or paper) are going to be useful as the litigation matter moves forward.

EDRM definition

You may be tasked with managing a team of reviews… if that is the case, then read this, too.

Software

Most of the litigation technology software over the past 25 – 30 years has been developed to support this phase of litigation. It is not unique to e-discovery but electronically stored information was the catalyst for major new developments in litigation technology over the past decade or more. Here are a couple of the most recent examples and two of the traditional tools in today’s marketplace (this is not an endorsement of any tool…)

Traditional Option # 1 and Option# 2

Newbie #1 and Newbie #2

Discussion

The majority of the litigation budget is typically spent on the attorney review. This article discusses some of the ways to cut time and cost using technology.

ANALYSIS

Analysis can be a difficult term to define in our world as much of the technology has driven the definition in recent years. However, simply put, “analysis” is what the attorneys do when they review. In an effort to save time and trim costs, technology has developed to assess and analyze litigation data early in the case as well as later. The technology does NOT replace the attorney review. The courts are still inconsistent on whether or not to require the technology but seem to be leaning towards requiring it… And I always say: The tools are not as important as the process. Do not bet your whole case on the technology available. My two cents. That said, here’s some useful information about ESI Analysis (again, not an endorsement):

Definition

Software 

I hope this overview of ESI Review and Analysis has been helpful to you as you continue to explore and learn more about e-discovery!

If you have any questions, feel free to e-mail me at erika at learnaboutediscovery.com

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Now Available On-Demand – E-Discovery Project Management Training

Did you miss the live online class we offered a couple of months ago? No worries, it’s now available on-demand.

E-Discovery Project Management On-Demand Training – Litigation Paralegal Bootcamp

AGENDA TOPICS INCLUDE:

•Project Management Methodologies: Which will work for your next e-discovery project?

•Role of a Project Manager

•What does it take to transition from senior paralegal to e-discovery project manager?

•What Should Be in Your Standard Operating Procedure (SOP)

•Outline of Best Practices for Each Phase of Your SOP

•EDPM Responsibility Matrix, Planning Resources and Budgeting

 

This course is only 90 minutes and can be completed on your lunch hour.

 

Learn about Predictive Coding & Technology Assisted Review

Predictive coding and technology assisted review have been hot topics in the e-discovery world for over a year. Here are a few resources for you to learn more about it. We will begin with a recent video interview of Ralph Losey where he briefly discusses PC and TAR as well as transparency at Legal Tech NY.

Next, listen to this 30 minute PODCAST from Legal Talk Network

And finally, let’s keep in mind that the key word here is “assisted” … you and your review team still need to learn the facts of the case… check out this post from the e-Discovery Daily blog

EDPM: Managing Expectations

The tools are not as important as the process. Technology can only take your project so far as seen in Thorncreek Apartments III, LLC v. Village of Park Forest.

Village mistakenly uploaded 159 privileged documents for Thorncreek as part of the production, which included every document marked as privileged, as it expected Kroll’s software to automatically withhold privileged documents.

The emphasis on the word EXPECTED is mine. Technology does not run on its own… it needs people. Technology needs project managers who understand what the technology can and can not and/or should and should not do. Technology and project managers both need project stakeholders (i.e. attorneys & paralegals/ clients) who will take the time to listen and understand that we must work together to effectively plan for quality control and then take the time to actually do the quality checks before productions.  However, as noted in the quote below from a law firm’s blog, e-discovery project management is a TEAM effort and a single person probably should not have been expected to do everything themselves.

In analyzing whether Village waived its claim of privilege with respect to six inadvertently produced documents, the Court noted that simply marking documents as “responsive,” “non-responsive” and “privileged” falls “well short of what we would expect for an adequate account of the review procedure.” Village argued that its efforts to protect against waiver were reasonable because it believed that by marking the documents as “privileged’ in Kroll’s online platform, they would be automatically withheld. However, the Court found that Village employed only a single attorney to review the documents to be produced and Village failed to review the documents uploaded for Thorncreek to view for nine months. Finally, the Court cited the lack of a privilege log in finding that Village did not act reasonably to protect its claim of privilege. In doing so, the court held that Village waived privilege to the six documents.

Here are a few other online resources that discuss what went wrong with this case…remember: The tools are not as important as the process.  It’s not that there is anything wrong with online review … the issue here is that the project management methodology was lacking the step for quality control and understanding of the technology (tools) being used.

Defendants’ “Completely Ineffective” Review Procedure and Failure to Rectify the Inadvertent Disclosure in a Timely Way Results in Finding of Waiver : Electronic Discovery Law.

Don’t blame your vendor.

This article offers some practical tips for managing expectations:

  1. communicate clearly with vendors, don’t “assume” that documents marked “privileged” will be withheld from the production – tell the vendor to withhold them (even if the vendor is an experienced litigation support vendor);
  2. produce a privilege log early on and deliver it to the opposing counsel – if a document on the privilege log is in the production set, and opposing counsel discovers that, s/he will be obligated to inform you;
  3. better yet, use your privilege log to spot-check the vendor to assure that documents marked “privileged” are, in fact, withheld from the production;
  4. even if you are in the throes of a busy deposition schedule, when you learn of an inadvertent disclosure, act quickly to identify the scope of the problem and request the return of privileged documents.

How to Manage an ESI Review Team

The following links point to a series of posts from the E-Discovery Daily Blog. The focus of the content walks you step by step in best practices for managing an e-discovery document review team.

1.       Introduction

2.       Clearly Define Objectives

3.       Get a Handle on the Document Collection

4.       First Steps in Drafting Criteria

5.       Drafting Responsive Criteria – a Step-by-Step Guide

6.       Drafting Privileged Criteria

7.       Applying Topic Codes in the Document Review

8.       Identify a Project Manager

9.       Prepare a Review Plan

10.   Assembling the Project Team

11.   Training a Review Team

12.   Starting the Project

13.   Keeping Decisions in the Hands of the Attorneys

14.   Ensuring High-Quality, Consistent Work

15.   Keep the Staff Motivated

16.   Use the Team’s Knowledge

Review Guide « The Electronic Discovery Reference Model

EDRM Document Review Workflow Chart

Aim: To gain an understanding of document content while organizing them into logical sub-sets in an efficient and cost effective manner.

Goal: Develop facts, reduce risk, reduce cost, leverage technology, facilitate collaboration and communication.

via Review Guide « The Electronic Discovery Reference Model.

This is a pretty in-depth overview of what you need to know to successfully plan and manage a document review.

Key Learning Points include:

  • Review Technology, Process & Workflow
  • Review Team Management
  • Vendor / Service Provider Selection
  • Reporting and Metrics

Managing Lawyers for your Document Review – 10 Tips

Here are 10 tips for managing contract attorneys.

via Managing Lawyers.

  1. Privilege law
  2. Choose wisely/ do your homework
  3. Quality control
  4. Conferences/ getting started
  5. Review software
  6. Share knowledge
  7. Provide managerial and technical support
  8. Provide the proper office equipment
  9. Treat contract professionals with respect
  10. Build teams

Early case assessment – Getting Started (ECA)

Early case assessment – Wikipedia, the free encyclopedia.

I would recommend learning about early case assessment by reviewing the Wikipedia entry on ECA first. Then take a look at the article by Eric Barnum that discusses ECA with or without technology. This article is critical to understanding the attorney point of view as well as the fact that lawyers have been doing ECA for decades and it really has nothing to do with e-discovery. However, because of e-discovery, it is not a step in the litigation process that can be skipped. And finally, George Socha and Tom Gelbmann bring everything together in a recent article from Law Technology News.