Whether you’ve already built an efficient electronic discovery process or you’re looking to create one from the ground up, your approach should be an ever-evolving process that takes into consideration new data trends, best practices, compliance regulations, and more. It’s something to be honed and optimized over time, rather than put into place once and never revisited.
Back in 2019, Zapproved’s Corporate Ediscovery Benchmarking Report found that 54% of organizations say that their top ediscovery priority is streamlining and modernizing operations. We still hear that today. With a process as multi-faceted as ediscovery however, it can be daunting to think of where to start, so we’ve outlined a few ways you can optimize your electronic discovery process today.
The Tried and True Legal Hold
If you’re implementing a new ediscovery process or refining your current approach, the one thing to optimize if you change nothing else, is to implement a modern automated legal hold solution that can easily issue, track, and enforce legal holds.
It might be surprising, but many companies still struggle with a manual legal hold system. Too often, legal teams use spreadsheets, email read receipts, or outdated systems to track legal hold notices and compliance. Legacy systems or processes can waste considerable employee time to create and maintain. They are also unwieldy and susceptible to human error, exposing your organization to potential risk.
Modern software tools are simply more efficient and effective than manual processes, empowering users to issue legal holds with multiple custodians with pre-approved language in seconds, rather than hours or days. These advanced software systems can ask custodians to affirmatively acknowledge their obligations under the hold. They can also report on compliance rates and trigger follow-up notices to custodians as needed.
Automated litigation hold software also provides a defensible “audit” view that documents when each custodian was added to or released from a hold, when each custodian was interviewed, and when files were collected. Detailed hold histories will display all revisions of a hold and confirm when custodians received them. Comprehensive reports regarding legal matters within the organization can provide information about every active hold and custodian at a single glance. This level of proof enhances the defensibility of your legal hold process while saving time, improving employee productivity, and mitigating the risk of spoliation.
Getting a Preservation Plan in Place
Preserving evidence is a crucial jumping-off point for ediscovery and all negotiations and court proceedings that come thereafter. Just like your whole ediscovery process, your organization should be periodically reviewing, updating, and optimizing your formal preservation plan as litigation arises, new players come to the table, and new data sources emerge.
We believe a strong preservation plan is a critical cornerstone for corporate legal teams, even though it isn’t required by any governing body. A formalized plan ensures a timely response by identifying how decisions will be made and what processes will be necessary when a preservation obligation arises.
Your organization has to ensure that your data preservation efforts are reasonable and in good faith – core tenets of defensibility. And a preservation plan provides a blueprint for your defensible process, from initial awareness of a trigger event through the release of legal holds at the close of a matter. Most legal teams are going to have some sort of standard preservation workflows in place, but a preservation plan helps you gather all those tasks into one standard, repeatable process.
The good news? It doesn’t require perfection. For more on conquering preservation, read our ebook here.
Staying Afloat in a Sea of Data: Processing & Culling
Two overlooked areas of electronic discovery, where opportunities for streamlining and modernizing abound, are processing and culling. After potentially relevant electronically stored information (ESI) has been identified and collected, in-house teams need to get it into a usable format for the review stage of a matter. In addition, whether conducting review in-house or leveraging outside counsel for higher complexity or higher risk matters, the overall collected data volume needs to be culled down to a usable size.
Narrowing down large data sets to the most relevant subset gives you more control over the scope of your review project, and therefore, your time and cost. Through the use of processing and culling, in-house legal teams can make informed decisions about whether to involve outside counsel/vendors or complete the review and production of the document set in-house.
A good processing engine will also automatically reduce data volumes through deduplication and other standard culling techniques. With data only continuing to balloon and expand, every tiny bit that you can cull in the early stages of the process will save you tons down the line when you get to review.
The Big Ticket: Review
Review is–and always should be–a balancing act between what to do in-house and what to send to outside counsel. However, there are plenty of high-frequency, low-complexity matters that can easily be handled by the legal team, reserving your outside spend for high-risk, highly complex cases. After all, that kind of expertise is why outside counsel will always be a critical component of any ediscovery strategy. Imagine what your outside vendor invoices would look like with even a 50% reduction in the amount of data they need to weed through.
Internal investigations, subpoena response, or third-party requests, are great places to start when looking at what to bring in-house. Plus, their tight timelines mean less time waiting for an outside vendor to get back to you. For more on optimizing review, see our guide here.
Establish Electronic Discovery Metrics
Metrics, also known as key performance indicators or KPIs, are the silver bullet to continuous improvement – not to mention cost savings and budget control – for any ediscovery process. There’s nothing mysterious about measuring and analyzing data, but most organizations haven’t adopted a consistent metrics program despite the benefits because it can feel like an overwhelming process to set up.
If you’re not sure where to start, or if you’ve tried to start and haven’t gotten good results, it’s best to get a handle on what exactly ediscovery metrics are and what they’re used for.
Managing for Continued Success
Finally, and perhaps most importantly, the electronic discovery process shouldn’t end the moment a case is resolved. Just like any other operational process your organization has, ediscovery is an ongoing process, one that is best suited to constant attention, refinement, and optimization.