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Electronic Discovery Considerations in 2021

By Procopio Senior Counsel Elaine F. Harwell and Legal Intern Phyillis Wanjiru Macharia

As the world increases its reliance on technology, many of our tools continue to grow and evolve, including Electronic Discovery (“eDiscovery”). eDiscovery refers to identifying, collecting and producing electronically stored information (“ESI”) in response to a request for production in a lawsuit or investigation. While eDiscovery has been around for many years, recent changes have altered the landscape. This article will discuss some of the common issues and present tips to recognize and resolve them.

Inefficiency Increases Document Review Costs

Inefficient processes significantly increase eDiscovery costs. Luckily, recognizing these inefficiencies and understanding how to correct them will minimize your document review costs. Three major inefficiencies that can be easily addressed are: (1) disproportionate time spent on search term negotiations, (2) junk attachments, and (3) excessive issue coding.

  1. While one of the goals for eDiscovery is reviewing fewer documents, the process of negotiating search terms between parties can be a long and arduous task, it is now largely avoidable. Machine learning technology can work through data faster and more effectively than search term negotiations ever could. Advanced data analytic tools can streamline this process at the front end of eDiscovery to allow parties longer time to review at the tail end. With data analytic tools, opposing parties can avoid nit-picky search terms altogether. Parties may now agree on basic search terms, run them through an advanced analytics platform that expedites the search and can remove unnecessary data, all while keeping parties on schedule.
  2. Junk attachments are the contents of an email that are not needed for review. Items such as the company's logo, social media icons, and other special texts in the document will clog up your database and significantly lengthen your review. To avoid these impediments, look to your data processing system for a function that can exclude things like irrelevant logos, icons, and other meaningless items. It is best to identify and eliminate junk attachments as early as possible in the process to ensure efficient work. Be sure to conduct regular quality control reviews to ensure only junk attachments are removed. 
  3. For issue codes to be effective, they must be coded in a consistent manner to be searchable throughout the course of litigation. Anything more than 8-10 tags slows down the pace of review and increases costs while offering little return value. Analytic tools, such as Technology-Assisted Review (“TAR”), provide reviews to search for documents within the platform with ease. TAR is a technological process that uses computer software to classify documents based on input from initial reviewers and is a platform for efficient and intelligent reviewing.

While inefficiency traps continue to plague many organizations, there are tools available to correct them. Your review team should work together to ensure that your document review is efficient and defensible every time.

Leveraging Machine Learning Improves eDiscovery

While the demand for an attorney’s experience and judgment remains irreplaceable in the legal profession, with the rise of big data, machine learning can be a useful tool for helping legal teams make better decisions and predictions. It is undeniable that litigation, investigations, and regulatory compliance matters continue to see exponential growth in the amount of email, documents, spreadsheets, images, videos, audio files, third-party applications, chat, and other forms of data have become too extensive to review manually. TAR is initially trained by reviewers to identify relevant documents and then uses human judgments to continuously search for additional relevant documents to cull a data set and organize data.

With TAR, review teams can work faster and more efficiently. For example, a simple function in TAR shows a percentage of relevant documents found from a search inquiry. Review teams can have a reasonable basis to conclude their review once the search objective is satisfied. This function reduces the review time and allows review teams a head start on their collection of necessary documents.

Collaborative Data in eDiscovery: What You Should Do

Technological advances have changed the way enterprises communicate internally and externally. Collaborative applications like Slack, Microsoft Teams, and Jabber have become mainstays in recent years. The growing adoption of these collaborative applications has caused difficulties in ESI discovery since they can contain potential evidence in litigation, internal investigations, and compliance matters. Courts are becoming increasingly familiar with collaborative applications, and as such, they are more likely to compel production from these sources. The particularities and lack of uniformity of each collaborative application, however, presents challenges to discovery teams. Companies can take these steps now to prepare for successfully producing collaborative data in eDiscovery:

  • Determine the scope of the use of collaborative applications in your organization. Work with each business unit and IT to identify potential sources of discoverable data.
  • Once data is identified, determine where it is actually stored. Some data may seem accessible through the platform, but a collection would only yield a hyperlink to the file.
  • Understand your search options. Some applications have built-in searching capabilities and others may not. This will inform you whether the native front-end searching capabilities can be leveraged to reduce collection volumes and in an export.
  • Assess the use of document versions used within the application and the organization. Cloud capabilities have enabled users to create files and collaborate on version-controlled editing. Document collaboration tools such as Teams and Google Docs allow collaborative users to share documents and create numerous versions. Thus, the version collected for discovery may have a significant impact on the needs of the case and collecting every version will increase the review burden.
  • Conduct data testing to evaluate review options to assess what limitations the company may face in terms of presenting, searching, and tagging data from collaborative applications. Best practices suggest that legal discovery teams prepare test data for data types you expect to collect in the future to ensure readiness upon production requests from the court.

Security Concerns During and After COVID

COVID has brought many changes to the legal profession. Lawyers have had to adjust to remote discovery and court proceedings, meeting with clients on Zoom, and operating outside traditional office walls. With remote work comes new challenges and concerns, including whether remote document review is safe and secure. Reviewers working from home need to take extra precautions to safeguard confidential information and should consider prying eyes from curious family members or the level of security provided by a home internet connection. Remote document review, however, can be performed safely if certain precautions are taken. 

The most secure approach to performing document review requires reviewers to use a VPN tunnel or other type of secure portal when accessing the review platform. If neither a VPN nor a secure portal is an option, two-factor authentication should be implemented for any person remotely accessing the review platform.

Document reviewers should also follow the privacy policies of their law firm, company, or vendor. In addition, there are personal actions that can be followed to improve security:

  • Refrain from performing review in a public location;
  • Be aware of your surroundings;
  • Lock computers when they are not in use;
  • Review documents on a computer that is ONLY used by the reviewer;
  • If a document reviewer cannot use their own computer, they should clear their internet browser history and secure any files or other confidential information before the computer is used by anyone else; and
  • Refrain from downloading any materials onto personal computers or sending/receiving materials using a personal email.

Keeping these tips mind, following the organization's policies, and regularly training reviewers on cybersecurity and cyber hygiene, will help ensure the security of your confidential data.

eDiscovery: Authenticating Electronically Stored Information

Under the Federal Rules of Evidence (“FRE”), a court cannot admit an item into evidence unless a party authenticates it and satisfies certain additional criteria. In regards to ESI, authentication typically occurs before a hearing or trial through requests for admission or an authenticity stipulation with participating parties. Where an agreement between the parties cannot be reached or a request for admission cannot be obtained, alternative methods can be utilized, including:

  • Offering extrinsic evidence that establishes authenticity under FRE 901(b)
  • Offering self-authenticating evidence under FRE 902
  • Seeking judicial notice under FRE 201(b)
  • Seeking a ruling from the court that the opposing party conceded the ESI's authenticity by producing it in discovery
  • Seeking an authentication ruling as a sanction for an opposing party's discovery misconduct

Conclusion

Discovery can make—or break—any litigation. Those conducting an eDiscovery search need to obtain the right information as efficiently as possible while avoiding soaring costs and lost time. State-of-the-art tools now exist to produce the best possible outcome for litigators who are both aware of these tools and know how to use them. Clients finding themselves in litigation would do well to hire outside counsel who know how to use those tools while avoiding common eDiscovery pitfalls.

Elaine F. Harwell is a Co-Leader of Procopio’s Privacy and Cybersecurity practice group. She is an experienced business litigation attorney and a trained privacy professional. Her practice focuses on representing clients in privacy and data security matters, including litigating claims involving privacy issues, helping clients manage emerging risks and conduct privacy risk assessments, and advising on regulatory and compliance issues. Elaine has earned the ANSI-accredited Certified Information Privacy Professional/United States (CIPP/US) and the Certified Information Privacy Manager (CIPM) credentials through the International Association of Privacy Professionals (IAPP).

Phyillis Wanjiru Macharia is a legal intern with Procopio. She is a first-generation Kenyan-American earning a law degree from Pennsylvania State University, Dickinson Law. When not interning with Procopio, she spends her time hiking, saying her excitement for hiking is reflective of her pursuit of becoming an attorney: always up for a challenge.