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Discovery: eDiscovery project essentials

Discovery: eDiscovery project essentials

By Tom Bennett-Mitrovski

Practice & Procedure Technology 

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There are some key considerations for practitioners looking to succeed in their next eDiscovery project. 

Snapshot
  • Refresh eDiscovery project management essentials, including project scoping, database setup and review workflows. 
  • Update knowledge on practical considerations when engaging an eDiscovery partner, structuring data for review, and outsourcing project processes. 
  • Measure eDiscovery project success while developing a continuous improvement framework.

What is eDiscovery

At its most basic, eDiscovery is the process of organising, reviewing and producing electronic documents. Traditionally, this process has involved a lawyer reviewing and coding documents in a cloud-accessible platform. More recently, however, eDiscovery has come to encompass the use of artificial intelligence tools to augment lawyer review and reduce the time and costs associated with large projects. 

When to use eDiscovery

Knowing how and when to setup an eDiscovery platform need not be a daunting proposition. While some eDiscovery terminology and concepts might seem complex, by clearly linking project decisions with overarching obligations and client objectives, practitioners can overcome this complexity and leverage legal technology to succeed in their next eDiscovery project.

Getting started

The first step in the process is to confirm that the matter lends itself to eDiscovery. Generally, if a matter has approximately 500 documents (files) within the combined discovery set, and these documents are predominantly native digital documents, then an eDiscovery platform is likely to be viable both financially and from an efficiency viewpoint. For matters which exceed this document count, in nearly all instances, the functionality and costs of an eDiscovery platform will outperform a printed paper review or manual digital review.1

Set out below is a three-tiered checklist designed to assist practitioners across the key phases of an eDiscovery project – Scope, Setup and Start, and Success.2

Scope

With discovery and trial preparation costs regularly making up the lion’s share of professional fees in litigated matters, it is critical to assess the benefits of eDiscovery early to ensure they can be maximised.3 To do this effectively, practitioners should ensure they have adequately scoped the matter at an early stage and considered the material that will likely form the bulk of discovery. It is also essential to explain the costs, benefits and necessity of utilising an eDiscovery tool to your client as soon as practicable.

Key considerations before deciding on a platform and engaging a provider include:

  • the volume and format of discovery data that will need to be reviewed, collated and produced (ie, does the matter and the material lend itself to utilising an eDiscovery platform?)4
  • the provenance of discovery material and whether there are likely to be issues relating to forensic collection, chain of custody or metadata. This is particularly important where key issues in the matter turn on who knew what and when, or there are concerns around evidence tampering (ie, attempts to delete or back date documents)5
  • whether it will be necessary to produce discovery in a prescribed exchange format negotiated between parties, in a court book or to a set protocol6
  • whether the matter has progressed to the point where incurring costs associated with discovery can no longer be delayed. For example, where settlement negotiations have stalled, there is an impending discovery deadline or you have received instructions to begin review
  • whether you have requested and received quotes from multiple service providers and assessed each quote against your review requirements, deadlines and matter strategy7
  • whether you are comfortable using the technology, have internal resources available to assist, or can access specialist project management support from your service provider8
  • whether you have negotiated your quotes or sought to cap costs, including ad hoc project management and consulting budgets9
  • whether you are likely to outsource any elements of the document review project including first pass relevance review, privilege checks or issue tagging10
  • whether you have requested and reviewed information/cyber security policies pertaining to the custody and control of discovery material, and whether your service providers have completed conflict checks and other essential documents including non-discosure agreements (as necessary).11

Ultimately, the scoping phase should focus on understanding discovery materials and required eDiscovery outputs, service provider offerings, pricing and expected support requirements. 

Setup and start

The next step is to set up a platform and get started. At its core, this step involves collating materials for processing into the eDiscovery platform, setting up defensible review workflows, assigning project responsibilities, communicating deadlines and undertaking user training. 

For practitioners with strong eDiscovery technical skills or for smaller scale matters, the setup step may be as simple as providing a secure download link or USB drive of materials to your service provider, running a user training/project scoping session and getting started on the review. For larger matters, or where tailored technology or managed services are required (ie, outsourced document review), further expert assistance will be essential. It is important to lean heavily on internal support or an external provider during the setup phase for larger scale matters. Expert support and the associated application of knowledge and technology can make a considerable difference to project run-time and cost.12

Key considerations include:

Start with the end in mind: Make clear to all stakeholders what the key timelines, outputs and expectations are at the beginning of the project. This could be as simple as “we need to make discovery by this date in compliance with this order” or “we need to review this material and find this information in order to further particularise our claim” or “we need to review and redact this material to protect confidential information”.

Clarify who is going to drive: It is essential to understand who will do what in the platform. This is particularly important where you have multiple users operating in the workspace. Most eDiscovery platforms provide tools to lock-down specific functions and document sets, and these options should be considered where relevant. This is particularly important where confidential or sensitive information is being reviewed or there are multiple legal issues being tagged to what are otherwise the same documents.13

Understand how the review is going to be staged: Much like building a house, it is essential that the review begins on solid footing and progresses in a structured and legally defensible manner. This includes taking initial steps to declutter the platform, allocating review materials to appropriate team members and tracking review work product with a decision matrix or similar.

Adequately engage with options that might streamline the review or reduce costs: This could include outsourcing “first pass” relevance review, utilising AI tools including technology assisted review (TAR), undertaking a comprehensive early case assessment (ECA) or focusing review efforts on critical events, dates, people (custodians) or keywords.

Communicate with the other side and court with the support of your subject matter expert: In instances where a document exchange protocol is being negotiated, or the use of technology to streamline review is contemplated, it is important to be up-to-date on relevant practice notes, the position of the other side and expectations of the court or regulator regarding case management. Lean on your subject matter experts in this area and request their support when engaging on these items.14

Understand service levels: Will the matter be 24/7, tied to one or multiple time zones, or require technical support to manage basic platform functions? If so, it will be essential to know what sort of support you can rely on and expect. If your internal support is unable to commit to service levels, or you have no internal support, consider the use of an external provider and ascertain the service levels that you can expect to receive. 

The “Setup and Start” phase is where most of the work in the project is completed and as such is focused on resourcing and leveraging tools effectively. Practitioners who can effectively manage the strategic and technical elements of matter setup alongside the requisite legal review will be well placed to succeed in their next eDiscovery project. 

Success

The final stage of the process is achieving the desired outcome from your eDiscovery project. This might be the production of documents for discovery, the unearthing of the “smoking gun” document or the production of documents in a compliant format of a regulator. As with other parts of the litigation process, it is often difficult to assess success until clear feedback by way of settlement, judgment or regulatory outcome is known. There are, however, several ways to gauge the success of your project which sit outside the eventual matter result. These include user experience, effective use of managed services and technology and overall costs. 

Key considerations when assessing the success of an eDiscovery project include:

User experience: Were users able to effectively engage with the platform and develop skills and workflows that were fit for purpose for the matter? If not, what was the issue? Was it an issue with the platform, training or support offered, or something different? By internally reviewing and making a concerted effort to measure user experience, practitioners can continue to develop skills and workflows and better direct future projects. This information should be stored centrally or with key staff in order to make this knowledge accessible for other team members.15

Value-add from support: Has the internal support team or external partner provided timely, practical and valuable support across the project? It is often difficult during a time critical review to engage on these points, however, the value in developing repeatable workflows and set protocols with a service provider (whether internal support or otherwise) can be essential to succeeding in future projects.

Budget review: How close to budget was the eDiscovery project? Split this into practitioner billables, disbursements and internal resource spend. This step can provide insight into inefficiencies, help to identify gaps in workflows and tools, and uncover opportunities to outsource low value tasks. This step should also play into measuring client satisfaction and become a valuable step in demonstrating value.16

Compliance: Were materials produced at the conclusion of the project ultimately fit for purpose? This includes producing to a set document exchange protocol, into a court book or into an evidence presentation system at trial. 

Success: Return to the “starting with the end in mind” question and assess project success against timelines, outputs and requirements. 

Ultimately, there will be more than the matter outcome to consider when assessing the success of an eDiscovery project. If handled correctly, eDiscovery can play a critical role in achieving a timely and cost-effective result in document heavy matters and can be a major differentiator in the delivery of legal services. Practitioners who can effectively manage eDiscovery projects with a focus on scope, setup and start, and success, will be well placed to deal with the challenges of today and those of the not too distant future. ■


Tom Bennett-Mitrovski is an account director at Epiq Global and has extensive experience in eDiscovery, legal technology procurement and litigation evidence management. He is an Executive Committee member of the LIV Technology and Innovation Section and chairs the Privacy, Cyber Security & Risk sub-committee.

  1. A manual review refers to a review conducted within a document management system (DMS), PDF viewer or file explorer equivalent.
  2. This article is presented through the lens of a general commercial litigation eDiscovery project. While there will be differences in workflows for other matters, the general principles of this article are applicable to all eDiscovery projects. Please also note that these stages do not replace the Electronic Discovery Reference Model (EDRM) but are presented as a practical guide to lawyers engaging in eDiscovery in Victoria.
  3. The Hon Justice Clyde Croft, “The management of costs in Australian litigation – reforms and trends” (2011) Singapore Supreme Court, 22.
  4. Material refers to the file types that make up the set of discovery documents. Documents that are native digital (ie, emails, Word documents, Excel documents, text messages etc) will lend themselves to eDiscovery, while hard copy documents in some cases will not. 
  5. Eg, the date an email was received, opened or responded to may be critical.
  6. Australian regulators (ASIC, ACCC etc) have their own prescribed document production formats, as do most higher jurisdictions, and royal commissions and inquiries. The production of court compliant indexes and documents can often be significantly easier when documents are available for collation within an eDiscovery platform.
  7. In many instances quotes won’t be presented “apples for apples” and some line items will be present on one quote but not another. If something is included or excluded from one quote but not another, ask the service provider to clarify. This will also work to mitigate bill shock and assist with matter budgeting.
  8. An easy way to test your understanding of quotes and services is to assess whether you would be comfortable explaining them to your client. If it is unclear why a particular item is required or where a particular service fits within your eDiscovery plan, ask your service provider or internal legal technology specialist for an explanation.
  9. Flexible pricing options are increasingly prevalent in the market with capped monthly cost models, “all in” bundles and trial periods available in some instances. Ask your service provider about these options and consider which model suits your matter strategy and budget.
  10. eDiscovery partners are increasingly offering add-on “document review” services on top of platform setup and management. These services are offered either on an hourly or “per document” rate and leverage review teams in lower cost offshore locations including India, Europe and the US. Key drivers when engaging such services include the scale of the document review task, the deadline for completion of the task and end-client cost considerations.
  11. This item can be crucial when dealing with international providers who may not house data “onshore”. Also consider the risk associated with using a provider that may not have the maturity of cyber security required to effectively protect client data.
  12. Eg, the effective use of data culling tools, keyword searches and date searches can reduce documents sets by more than 70 per cent in some instances.
  13. These tools are also useful to enable counsel and, if necessary, your client to access the database and engage in the review and document markup process.
  14. This is particularly important when confirming production formats. Poorly negotiated document exchange protocols or misunderstood production requirements can result in dramatically increased costs for non-compliant parties. 
  15. It is also increasingly critical to assess the user experience of external parties including counsel and clients if they are also involved in the eDiscovery process. The learning here can make for ease of briefing and engagement in future projects.
  16. Be sure to request the production of end of matter billing reports from external/internal stakeholders and assess these reports against estimates. It can also be useful to review time entries to identify opportunities to upskill team members, shift billable tasks, or adjust workflows.

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