Over the past few years, there has been a significant increase in the number of tools available to attorneys to analyze and review electronically stored information (“ESI”) that has been collected from clients or produced by opposing parties. While courts and attorneys continue to become

Over the past few years, there has been a significant increase in the number of tools available to attorneys to analyze and review electronically stored information (“ESI”) that has been collected from clients or produced by opposing parties. While courts and attorneys continue to become comfortable with the use of tools like technology-assisted review, email threading, document clustering, and document categorization to facilitate the actual review of documents, there are a host of top-down methods for analyzing the document population as a whole that can provide helpful insight that would be difficult, if not impossible, to obtain through a document-by-document analysis.

On November 10, 2016, Law360 released an article entitled Data Analytics: How Parties Are Using Tools Beyond TAR that outlined a number of case studies where these “big data” tools can directly assist in identifying potential areas of interest or gaps in available ESI.

A number of analyses and summaries that can provide significant benefit are as follows:

  1. Summary of ESI Timelines: When dealing with a large number of data from various sources, it is extremely helpful to conduct an analysis of when particular sets of data are available. For example, by creating a visual graph of a custodians’ mailbox, you may be able to identify the timeframe that individual was sending or receiving email (including filtering to exchanges with particular individuals) and whether there are any trends or gaps requiring further investigation. These summaries can be used during wage and hour cases to identify whether individuals were sending emails (and other types of communications) while off the clock.
  2. Summary of ESI Flow: In other situations, it may be unclear which systems are exchanging data and when and how that data is being interpreted. Discussions with system architects and information technology members can direct you to the systems that actually impact the data that may be relevant to your particular case.
  3. Identification of Potentially Privileged Communications: One of the most important steps in analyzing ESI that has been collected is to take reasonable steps to avoid the inadvertent production of privileged material. After identifying in-house and outside counsel, it is often helpful to create a chart visualizing the most common senders or recipients involving those individuals to identify whether there are other assistants, clerks, or paralegals that interact with counsel on a regular basis that may not have been previously identified as having a legal role.

Frequently, the primary focus is the content of individual documents that have been collected or produced. However, we recommend analyzing both the metadata and other information about your documents in order to identify common trends or patterns that would not be visible otherwise.