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professionals are all too aware that
the task of managing large mountains of data has always been a defining
characteristic of our industry. Now that we've had to layer on the explosion of
digital and social media content, we've got a whole new set of challenges in
front of us. The attorneys we support are looking to us for new approaches to
help them make sense of all this data.
The World of Big Data
In particular, lawyers are taking
greater notice of the legal, ethical and technological issues around the new
frontier for information technology: big data. IT professionals are on the
leading edge of this new battleground, developing innovative approaches to
information governance and implementing sophisticated technology systems to
harness the power of this data avalanche.
One promising application for big data
analysis is in electronic discovery, where fast, high-performing data analytics
can substantially reduce the time and cost of preparing for a case. In fact, at
the root of any e-discovery project or process is the ability to identify,
collect, index and analyze big data. As many legal IT professionals are
discovering, new analytics tools and big data technology innovations are making
e-discovery software smarter, which can only help law firms and their clients
better manage risks associated with failing to produce all relevant documents
in a lawsuit or investigation.
However, big data not only
bring improved tools to manage large quantities of information, there are also
new challenges to identify the most relevant data in e-discovery. The process
involves gathering information from a diverse range of sources, storing that
content and then developing systems so the information can be mined, analyzed
and produced. Big data require an IT environment that can easily scale to
handle high electronic data discovery processing without experiencing technical
For law firms of all sizes,
there are four key "best practices" for conducting e-discovery more efficiently
while controlling costs in the big data environment.
Develop a Strategy for Information Governance
It's important to start out by
creating and putting into place a comprehensive data management program for
compliance with regulations, statutes and best practices. This should involve
the development of customized guidelines and procedures for the creation,
storage and disposition of any and all types of data. Also create email
policies, litigation hold procedures and disaster recovery plans.
Many organizations find that
one way to improve efficiency and reduce costs is by performing an inventory of
enterprise data - developing a data classification process and creating a data
retention policy. You can then develop organizational management policies and
procedures for electronically stored information (ESI) that include electronic
email policies and develop workflows to deal with the potential for large
amounts of nonsearchable data, including hard copy documents.
Finally, turn your attention to
security issues as part of your information governance strategy. Stay current
on regulatory and legal data security obligations so you can create a data
security approach based on repeatable and defensible best practices. Be sure to
develop a data breach response plan that is unique to your organization.
Establish Rules for Data Extraction and Collection
While there are numerous methods used for data collection in
e-discovery, they can be narrowed down to two general categories: automated and
manual. With the explosion of big data, we have seen a proliferation of
automated ESI collection tools on the market. While these tools have helped
manage an enterprise's data and provided more streamlined methods for the
collection of ESI, many firms still opt to go the manual custodian,
The courts have yet to stake
out a clear position on either method of collection, but the Sedona Conference
has provided some general guidance in this area. In their "Best Practices
Commentary on the Use of Search & Information Retrieval Methods in
E-Discovery," practice point one states: "In many settings involving
electronically stored information, reliance solely on a manual search process
for the purpose of finding responsive documents may be infeasible or
unwarranted. In such cases, the use of automated search methods should be
viewed as reasonable, valuable, and even necessary."
Regardless of the collection
methods used, it is the education about, compliance to and ongoing review of
your data management policies that are the critical tasks that should be
undertaken by corporations and outside counsel to maintain a repeatable and
defensible ESI collection process for e-discovery.
Prioritize Data Sets
There are three primary methods
used to prioritize and organize data sets to be reviewed by counsel:
Use of analytics or predictive coding technology
Each approach has its own
unique set of advantages and disadvantages and, when used in conjunction with
careful documentation and appropriate iteration, should survive a challenge by
a party's opponent in litigation. The optimal workflow will likely require a
hybrid approach applying two, or perhaps all three, of these approaches to
reach the best results.
For example, the use of
analytics and predictive coding typically returns more relevant documents
without the limitations of traditional searching logic. However, a well-planned
and well-constructed keyword search can be more effective for certain
situations, such as locating specific date ranges and/or proper names. Putting
these technologies and methods together with the proper workflow, methodology
and documentation will deliver the best results and better maintain defensibility
More important than the actual
technology is how the legal teams - and the professionals who are familiar with
system limitations - combine them into the optimal workflow best suited to meet
the requirements for a given case. In the end, the success of these approaches
is based more on the personnel and workflow and not the technology itself.
Select the Best Technology Tools
Many law firms and
organizations have responded to the explosion of data and the resulting
increase in litigation matters by choosing to invest in their own e-discovery
software tools to manage tasks. With so many software options available,
companies have to evaluate their needs carefully before determining the right
e-discovery software for their specific requirements.
Every organization is unique,
and there isn't a "one size fits all" option available. Therefore, the
evaluation process of e-discovery solutions that are affordable and guarantee a
good return on investment is of the utmost importance.
The first step in evaluating
the actual tools is to decide which part of the e-discovery process you want to
invest in. Some firms have decided that having ESI processing and analysis
capabilities in-house is their priority over developing their own robust document
review platform. Others have determined they are best served by outsourcing
their processing needs and prefer to host and manage their own document reviews
internally. Still others have made the decision to invest in all areas of the
e-discovery continuum and take greater ownership of the entire process. Only
the professionals inside each individual organization are capable of making
these decisions, and they should only be made after careful and thorough
Any investment in e-discovery
technology can be quite expensive, and you don't want to lock yourself into a
solution that won't deliver what you need. These systems should be fast,
powerful and versatile enough to process and manage a large and diverse
population of data. Surveys have shown that lawyers' top priorities are speed
and ease of use when using document review software. Selecting a tool that
contains the features and functionality your lawyers and review teams desire
while maintaining the necessary speed and ease of use will go a long way toward
ensuring a successful implementation.
Scalability and flexibility are other important factors in
selecting the right tool. A typical challenge for many organizations handling
large projects is ensuring their tools can scale to handle very large volumes
of data in a short time frame. In addition, a tool that has the flexibility to
be customized to meet the unique and specific needs of any matter can prove to
be very beneficial.
Breeds More Efficiency
Litigation discovery has always
been an intensive process. The traditional approach was largely a waiting game
of putting off discovery until it was finally required to begin the
time-consuming process, oftentimes with attorneys hunched over boxes of
documents for hours at a time. Legal IT professionals can attest better than
anyone, the accelerating volume of data creation in the digital age has simply
outpaced our ability to manage it effectively during litigation discovery,
which is now more complex and costly than ever.
The good news is that the brave new world of big data is leading
us to establish clearer rules for data extraction, more logically prioritized
data sets, smarter information governance strategies and better technology
tools. This may not tame the explosion of electronic data in the litigation
world, but it does provide hope for navigating those mountains of data better
while managing risk and making the e-discovery process more efficient.
Ingram is a litigation technology and
e-discovery professional with over 20 years of experience in the legal
profession. Having spent the majority of his career managing litigation support
departments at large law firms, Brian has been involved in some of the largest
matters in the nation involving electronic evidence. He has also spent time on
the corporate side of the industry. Brian is currently head of the Litigation
Technology Consulting division at LexisNexis. He can be contacted at