Law Technology Today From the ABA Legal Technology Resource Center
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Even before the COVID-19 pandemic upended our normal lives, experts have been forecasting an economic downturn on the horizon for a while. Now, with no clear end in sight to the pandemic, we’re facing the very real possibility of a lasting recession. Regardless of what happens in the coming weeks and months, we should be thinking about recessions as a recurring reality. The good news is that their effects can be somewhat mitigated with proper preparation.
In the legal field, recessions are felt most dramatically in smaller litigation budgets that put attorneys in the position of having to do more with fewer resources. Thankfully, this is possible because e-discovery technology has advanced since America’s last economic downturn. These time- and cost-saving approaches, in fact, are effective enough that they’re worth considering in both good times and bad. Here are seven ways that companies can make their e-discovery processes ready for whatever comes next:
1. Establish a Standard E-Discovery Business Process
Businesses create continuity plans to be as well-prepared as possible for unexpected situations or emergencies. By giving their team a plan of action, businesses can help minimize disruption in their ability to serve customers and avoid the outlay of major unexpected costs. Business leaders should view their company’s e-discovery process in a similar way.
Establishing a standard e-discovery process helps insulate your core business from experiencing a preventable disruption if a legal event takes place, and can also put you in a better place to get through a longer period of upheaval caused by a pandemic or recession. By planning ahead, you can keep e-discovery costs under control, make sure your system for handling e-discovery is comprehensive and legally defensible, and ensure you never have to go through a frantic e-discovery “fire drill” ever again.
2. Get Your E-Discovery Centralized
Any business leader knows that centralizing basic processes is how you can keep costs down while maintaining a consistently high level of quality. The same philosophy applies to e-discovery. It’s possible to do more with less by contracting with a single end-to-end provider that offers a full suite of e-discovery services.
What’s more, in business litigation, it’s common for the data collected and processed to include sensitive company information—yet another good argument for centralizing your e-discovery. With each additional provider involved in the process, you pile on additional risk that your sensitive data could be unintentionally exposed. Having a single, fully vetted provider gives you maximum control over your enterprise data to ensure that it stays secure.
As part of centralizing your e-discovery, establish a secure repository to hold your attorney work product, so that anything that’s previously been reviewed can be reused without repeated review and tagging. This strategy also helps maintain a higher standard level of quality in your data and leverage your legal spend across matters.
3. Use Custodian Questionnaires to Lower Costs
Face-to-face custodian interviews, a customary step of the e-discovery process, have been curtailed by our current pandemic. During a recession, the cost of these in-person interviews might be deemed an unnecessary strain on legal budgets. But there’s a very logical alternative—custodian questionnaires.
Custodian questionnaires can be used by counsel to gather facts in an efficient, organized way from inside and outside an organization, allowing the legal team to focus its efforts on key figures and dramatically reduce the need for costly custodian interviews. In addition to helping locate those with relevant information in a legal matter, questionnaires can provide additional facts about the dispute itself or illuminate areas for further investigation. This additional background information helps to better prepare interviewers, making any subsequent in-person interviews that do take place much more effective.
4. Emphasize Remote Data Collection
Another common e-discovery practice that this pandemic has hampered is technicians traveling across the U.S. and overseas to gather potentially relevant data for a legal matter. Not only is travel difficult and sometimes impossible, but shipping a hard drive is not so easy anymore, either. However, by setting up your internal systems to enable remote collection, you can acquire nearly all necessary data in a painless way, and save quite a bit of money in the process by eliminating the costly outdated methods.
If your business runs on a cloud-based system, you’re already ahead of the game, since cloud data can be collected from anywhere in the world. Local data from in-house servers, employee laptops and even mobile devices can also be collected remotely with relative ease. You can even collect data from work-at-home employees. Though some cases may still require a technician to access the data in person, those situations are becoming increasingly rare.
5. Reduce Costs with Targeted Data Collections
One of the largest avoidable costs in e-discovery comes from the collection of unnecessary data. By using filters from the beginning of the process to exclude any clearly irrelevant data, you’ll reduce your costs in every subsequent step.
There are a number of tools and processes that help you accomplish this goal, some of which work in tandem. De-NISTing and Known File Format (KFF) elimination, for instance, can help weed out system files, program files, and other non-user-created data—and these are just the tip of the iceberg. The more that you can reduce the data you collect initially, the less time you’ll spend contending with it later in the process—often at a much greater cost.
6. Take Advantage of Data Processing and Early Analytics
Data processing is a routine part of the e-discovery process, and today, most data processing platforms on the market offer many of the same standardized functions. Though some platforms offer advanced tools like early case analytics, the biggest difference today comes in how well e-discovery professionals understand these systems and harness their power. When used effectively, data processing tools can reduce the total amount of data you load to review platforms, helping to mitigate costs in two of the most expensive parts of the e-discovery process (data hosting and document review).
You’ll also benefit from having an experienced e-discovery team that understands how to use intensive data analytics tools like advanced email threading and cross-custodian near deduplication, which can further decrease those data hosting and review costs. Although experienced analytics professionals cost more than document reviewers, you’ll save more in total by incurring that cost on the front end. In the same way a senior partner at a law firm can accomplish more in a short amount of time than a lower-level associate, a skilled analytics professional can remove vast amounts of unnecessary data early on with a high degree of precision, resulting in a huge savings of time and money over the course of the review process.
7. The Power of Machine Learning Technology
The cost of document review can be staggering—on a typical project, it easily makes up between 50% and 80% of total e-discovery costs. We’ve already discussed a few ways to reduce those costs, but there’s another powerful tool that we should mention: artificial intelligence and machine learning systems, which have the dual benefit of lowering costs while raising the overall accuracy and quality of the process.
Machine learning systems (also referred to as technology-assisted review, or TAR) have reached a level of sophistication where they’re consistently more accurate than humans. This makes sense if you think about it—document review is repetitive and tedious, making it a far more appropriate task for machines, which don’t get bored or fatigued like humans do.
That said, humans still have an important role in the document review process. Machine learning systems are initially trained by humans, so the quality of their results hinges on the quality of that preliminary human input. Therefore, it’s crucial to have knowledgeable experts involved in the process and quality-checking the results. The synergy of an intelligent team and state-of-the-art technological tools will benefit cases of any size or level of complexity.
Planning for Whatever Lies Ahead
Nobody likes to waste time or money. The frustration that comes from expending effort unnecessarily is only magnified in times like these, when budgets are stretched and human employees are working at full capacity. It’s no exaggeration to say that for some companies, their continuity depends on keeping costs at a manageable level. That’s why in the long run, there are real advantages to leveraging your technologies and workflows to lower your total e-discovery costs. Once you’ve done so, you’ll be in a better position for the economic times that lie ahead.
