There’s an old saying that says you can have two good things out of three. In the case of eDiscovery, the story would be: “You can save time, save costs, or minimize risk. Two out of three ain’t bad.”
In practice, however, losing one of the three can be very bad. Taking too much time angers clients and might trigger sanctions and fees. Costing too much either results in unhappy clients and lost work, or lowers profitability for the law firm. Higher risk revolves around poor defensibility and accuracy, and possibly the inadvertent disclosure of sensitive or confidential information.
Meeting your obligations takes doing the eDiscovery stages accurately and defensibly, at a reasonable cost, and at agreed-upon deadlines. Yet creating this workable balance is a tough job given today’s big eDiscovery challenges:
- Managing increasingly large data volumes along with new types of data.
- Reducing eDiscovery costs without affecting deadlines or accuracy.
- Managing project deadlines without sacrificing accuracy or cost savings.
- Letting eDiscovery findings drive case strategy early in the process.
- Staying competitive in the marketplace by passing cost savings on to clients while increasing your value add.
Analytics is a Great Big Part of the Answer
The one eDiscovery solution that can give you this balance is analytics. Analytics enables attorneys to add value whiling saving costs for their clients. Done well, analytics solves the problem of the tricky trade-offs between risk, cost, and time. With the right set of analytics integrated into your workflow, you can accomplish much more spending the same amount of money, or you can spend less money and still meet your obligations at reduced time and risk.
The key to using analytics well is not sticking to the well know but notoriously linear Electronic Discovery Reference Model (EDRM) process where analysis is a specific stage. (In fact, EDRM has updated its model to reflect that non-linearity.) Many solutions utilized during specific EDRM phases now offer related analytics, so the earlier in the eDiscovery process you start incorporating analytics to winnow down the potentially relevant data, the more powerful it becomes in later stages.
For corporations, analytics can in fact begin as early as the information governance stage. This stage is more IT’s lookout than the attorneys’, but the Office of the General Counsel may well work with IT to understand where data resides, what it is, and how to ready it for eDiscovery access.
Even if the GC or the law firm is not involved at the information governance stage, attorneys can use eDiscovery analytics starting at the pre-collection stage on to review. By using analytic tools and techniques at every step along the EDRM, attorneys can lower time, lower cost, and lower risk.
eDiscovery deadlines can be tight and 24- to 48-hour turnaround requests from clients are common. Attorneys are used to negotiating time and scope requests with clients, but analytics lets attorneys accomplish more tasks within a tight timeline then they could before. Review platforms that include a range of integrated analytics tools allow firms to run multiple scenarios on the data before the start of a review project to determine the most efficient analytics approach and workflow that will deliver the fastest, and simultaneously best, result for the client. Furthermore, platforms with integrated analytics can allow for the combining of, and monitoring of, analytics throughout the review so adjustments can be made on the fly, without restarting any part of the review, thus resulting in additional time savings.
Analytics also decreases time spent on the actual review itself. Even if internal review guidelines require attorneys to manually review each document, analytics allows them to prioritize, categorize, and visualize data sets before reaching the individual documents review stage using tools such as search term analysis, email thread management, near-duplicate identification, concept analysis, relationship analysis, and more. It’s perfectly possible to save up to 40% of the time that an unassisted review takes. And if reviewers do not require manual review for each document, they can typically use analytics, such as technology-assisted review or TAR, to speed up the review process from 60% to 90%.
The review stage is by far the most expensive of all the eDiscovery stages, and time = cost. By adopting analytics early in the process, attorneys analyze data for more relevant results. The resulting data sets are smaller and more relevant, which saves costs on review.
Analytics also saves money by enabling more informed case strategy near the beginning of the eDiscovery process. Instead of guessing at keywords and running multiple searches – then changing search parameters – analytics stresses the most relevant searches early on. Early analytics particularly benefits investigations, which can start with less information than other types of actions.
Further, more innovative review platforms include all analytics in the total cost of the software, which allow law firms to test out multiple culling, categorizing and review scenarios before and throughout the process to identify the most efficient analytics approach–but without incurring additional costs for each analytics tool used. And since sophisticated approaches to applying analytics makes it possible to do more at less cost, attorneys could choose to pass on savings to customers, or raise profitability, or both. Analytics gives attorneys a choice.
No time or cost savings is worth incomplete or low relevance data sets. The right analytics will lower risk by increasing accuracy and mitigating data loss. The analytics can search not only keywords but also categories, content, and context. They present the results to the reviewer visually in many different configurations, allowing the reviewer to accurately assess and create highly relevant data sets. The best solutions are also simple to use.
Analytics should also protect against data loss between eDiscovery stages. Attorneys cannot afford to lose work product, and integrating analytics with multiple workflow stages will protect it. Analytics at early, middle, and late stages should operate smoothly and deliver accurate results throughout.
Analytics that are integrated into, or can be added to, review platforms can achieve the three good things counsel aim for (minimized cost, time and risk)—but on a matter per matter basis, not across a client’s entire case load. A newer analytics approach adopted by forward-thinking law firms can consolidate data across all of a client’s legal matters and assess up to billions of prior document classifications made by attorneys to identify which documents are relevant for new cases, eliminating repeat reviews, automating the classification of documents and identifying data that could present a future legal liability. Thus, mitigating cost, time and risk across an entire client’s portfolio.
Attorneys should expect a learning curve while individuals and processes adjust to new and emerging analytics tools. Some firms give up on the tools too early, but those who adopt the right analytics platform for their business will reach eDiscovery nirvana (if that’s at all possible): accomplishing more in less time, at less cost, and more accurately. This is a recipe for happy clients and higher value add, and is worth some initial investment and learning time.