Is Your Law Firm Prepared For An E-Discovery Evolution?

Just twenty years ago, it was hard to image that electronic communication could be tracked, let alone produced by court order. Now, instead of human eyes scanning physical documents during discovery, digital engines search through hundreds of documents in mere milliseconds.

E-discovery has experienced a major evolution in recent years, reports Kroll Ontrack in its presentation “5 Daunting Problems Facing E-Discovery.”

At first, in the 2000s, e-discovery technology was limited to keyword search. Then, its artificial intelligence began to de-dupe. Next, files could be sorted and searched in different formats—from pdf to tiff. Then, there emerged review analytics with thousands of customizable statistics available upon demand.

Today, with a single keystroke, social media, cloud-stored documents, and even audio files can be undergo TAR, or Technology Assisted Review, which uses predictive coding that can nearly replace the grunt-work traditionally assigned first-year lawyers.

TAR, also known as intelligent review or computer-assisted review, remains an under-utilized resource in law firms. Lawyers, and certainly their clients, feel better about having eyes on every document.

Nevertheless, with proper training, TAR can save your law firm professionals time and your clients money. In addition to keeping apprised of the many developments in the technology surround e-discovery, your law firm should also remain aware of all regulatory changes.

For example, this week, e-discovery risks a major revolution.

Recently, the Committee on Rules of Practice & Procedure (“Standing Committee”) of the Judicial Conference of the United States formally released a package of proposed amendments to the Federal Rules of Civil Procedure (“FRCP”) governing the pre-trial discovery process (read the Forbes report here).

And, the comment period for the proposed amendments to the discovery rules began on August 15 and ends by February 15, 2014. You can submit your comments here.

What does this mean for your law firm?

The proposed amendments concern the cooperation to collect, timing of, preservation of, proportionality of, costs of and limitation of e-discovery. There are, particularly, important implications for attorneys specializing in employment law, like discrimination litigation. Read the entire list of proposals here.

So, to answer the title question: Is your law firm prepared for the e-discovery evolution? Consider the following actions:

  1. Conduct an analysis of your e-discovery technology. Are there more recent versions of your current software? What is your total usage compared to potential usage? Are your law firm professionals trained in e-discovery? Do they rely on TAR? Can your processes be streamlined or made more efficient. 
  2. Based on your results from the firm-wide survey, calculate the returns on investment of improving your e-discovery processes. Create a formal policy or manual to train or guide your employees.
  3. Have your IT visit each lawyer individually. Just ten minutes in individual question-and-answer sessions can drastically improve your e-discovery capabilities and efficiency.
  4. Circulate a monthly internal memo in the firm that includes important regulatory updates. Of course, CLEs should keep lawyers informed, but often internal memoranda can answer questions on paper that people are afraid to ask in person.

A craftsman is only as good as his tools; so, to craft better laws, lawyers need to consistently evaluate the condition of their technology resources.

The Center for Competitive Management (C4CM) offers E-Discovery Guidance and Best Practices.

In this practical audio conference, C4CM’s e-discovery expert will provide you with an inside look at the current state of e-discovery, current best practices, and how to reduce your costs and risks. You’ll also learn key tips and invaluable techniques for keeping your data secure.

By the end of this session, you’ll also know:

  • Why pre-litigation planning, including data mapping, is crucial to manage risk
  • How to institute a defensible legal hold
  • Best practices for developing a defensible collection and production process
  • How to choose wisely when outsourcing: onshoring, offshoring and ethical considerations
  • Best practices for reducing the cost of document review – including privilege review–while maintaining quality and defensibility
  • Five costly mistakes to avoid

-WB

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