Corporate law department management is quickly changing into a business process. General counsel and team need to accommodate tightening budgets and control costs. To get there, in-house legal professionals are adopting new technology and evolving established best practices. These five practical strategies can help keep discovery budgets on track: More effectively controlling data at its source, standardizing around a centralized data warehouse, and leveraging advanced analytics to drive process efficiency from case-to-case (and across cases) and make informed decisions.
1. Simplify Legal Hold and Collection
Legal hold and collection can be very costly. A typical workflow might have outside counsel conduct in-person interviews of custodians to identify potentially relevant data sources, a forensic collection vendor collect subject data, and an e-discovery vendor process and load it for review. In this traditional cost model, legal hold and collection alone can reach upwards of $500,000 per matter.
Modern legal hold and collection technology allows law departments to simplify these processes, and control costs, with a single system. Such platforms leverage existing templates to build and send customized questionnaires to identify potential custodians and their data, automate reminders and response tracking for defensibility, and help understand potential data volumes even before collection—improving insight into scope and costs. Integrated remote collection tools can gather potentially-relevant data directly from custodians located anywhere in the world, and automatically process and index collected data, supporting advanced search for promotion of relevant documents for review.
2. Centralize and Standardize Data and Processes
Surprisingly, many companies still “throw their e-discovery over the fence” to multiple vendors and firms. Maintaining data in silos is not only inefficient and risky, but it also doesn’t support meaningful metric assessment across cases. Whether you do so internally or through a partner, standardizing workflows around a central data repository can help you better manage across multiple matters, more easily establish best practices to drive efficiency, and then evaluate overall effectiveness by aggregating and analyzing all data sources.
Multi-matter management affords three primary advantages over the traditional silo model. First, legal teams can reuse coding decisions from a prior matter in support of a current matter. Particularly for issues like privilege, privacy and proprietary information, coding decisions generally do not change from matter to matter.
Second, you may even be able to reuse documents produced in a prior matter without further review. This opportunity is particularly prevalent with intellectual property disputes, where the same patents are alleged across matters. Technical documents can often be reviewed once, identifying privilege, privacy and other designations, and also coding for details such as patent, chip sets, and record types. When a new matter alleges the same patent or chip set, relevant documents can be re-produced in the new matter without additional review. Finally, centralization is a key component of enhanced reporting, necessary for daily management and strategic planning.
3. Reduce Review Volumes with Advanced Technology
As data volumes grow, technology-assisted review is an increasingly important tool to help reduce discovery costs. With TAR, reviewers help train a system to prioritize relevant documents. More advanced TAR systems use continuous active learning for better training performance. CAL reduces the costs of SMEs or senior lawyers reviewing thousands of documents to build a control or seed set. Instead, a team of reviewers simply begins reviewing documents. The system considers each coding judgment, and regularly re-ranks documents based on review of the whole, prioritizing documents likely to be relevant. In addition to prioritizing likely relevant documents, a good CAL system will also systematically identify unseen documents and include examples for “contextual diversity”—helping avoid relevance bias.
The key to real savings is having confidence in the tool and establishing a review cutoff. With CAL, the engine will continue to prioritize likely-relevant documents, creating rich review batches. Eventually, batch richness will drop off, indicating that overall richness of the un-reviewed set has diminished. At this point, you may be able to undertake a validation exercise to establish with statistical certainly the portion of relevant documents you have identified, supporting a proportionality argument to end review.
4. Evaluate and Optimize Technology and Process Regularly
There is a tendency in e-discovery to “set it and forget it.” A corporation establishes a solid playbook that seemingly accommodates its needs, and then rests on its laurels—meanwhile missing out on the value afforded by regular process evaluation and optimization. While this may be the simplest and most obvious strategy, it is likely the most overlooked.
When first establishing a best practice, today’s corporations are generally careful to “walk around the beast,” evaluating the impact to current processes and tools. Best practices entail memorializing new standards in a corporate playbook, ensuring consistent application and supporting process defensibility. However, to ensure that you take advantage of all opportunities to control discovery costs, you must also regularly evaluate and optimize your techniques and technology as your understanding of e-discovery evolves.
5. Use Business Intelligence to Make Informed Strategic Decisions
Corporate in-house counsel and legal operations professionals are adopting business intelligence strategies and tools for better matter management and to help drive informed strategic decisions. A sophisticated BI tool not only helps aggregate key e-discovery metrics, such as custodians, collections, matters, deadlines, resources and allocations, and historical review metrics; it also will integrate with other systems within the organization, including accounting and human resources.
Good BI supports day-to-day discovery management. You will know at a glance how many documents remain outstanding for review and whether you will make current deadlines with available resources. You will also understand current TAR/CAL metrics, and how they might affect a matter’s next steps. Have you collected all data for potential custodians? Will the volume of records coded as privileged impact production deadlines? Will you stay within budget? You can answer these questions and more with a simple BI dashboard.
BI also aggregates data across matters, helping identify opportunities for process improvement. What percentage of a custodian’s documents are privileged across prior reviews, and might that impact collection strategy for the pending matter? Separately, your BI tool should help you evaluate spend across firm or vendor, and will provide other key performance indicators that help you understand the overall health of your department and target opportunities to improve.
With the right technology and best practices, legal departments can improve daily operations, more effectively control discovery costs, and evolve their organization with data-driven insight.
Eric Willis, Esq., is vice president, enterprise solutions at Catalyst, where he advises and collaborates with corporate legal departments to design strategies for the data management lifecycle. He may be reached at firstname.lastname@example.org.