4 Common eDiscovery Mistakes (and how to fix them)

 

Even for the most seasoned legal professional, the eDiscovery process can be a minefield. Knowing what errors to be mindful of can be the difference between a smooth and watertight litigation procedure, or costly sanctions.

While we all know the importance of eDiscovery, due to a number of factors it is often something that many legal professionals – though most probably wouldn’t admit it aloud – have to pick up and learn on the fly.

With the regulatory landscape surrounding the eDiscovery process in a state of constant flux, finding the time to get your head around the ins and outs of it is a daunting prospect to say the least – even for someone without a dense workload.

Read on to find out four of the most common mistakes that legal professionals make during eDiscovery, and how they can be avoided to ensure your resources and reputation can remain at their best.

 

As digital technology continues to be reinvented and transformed, so too does the abundance of forms in which evidence can present itself.

New apps, social media channels and instant messaging platforms are emerging every day, meaning the landscape for data storage is constantly expanding into new territory.

As such, it is vital that those heading up eDiscovery processes stay abreast of emerging digital technologies, as well as how they are commonly used by the public at large.

Depending on the case or dispute at hand, anything from WhatsApps to Snapchats may be considered relevant evidence, and could lead to spoliation sanctions if not appropriately accounted for and preserved.

 

It is rare that an eDiscovery review process won’t require some degree of cooperation between legal and IT departments.

But with these disciplines often representing polar opposites in terms of culture, working processes and internal language, communication problems between these two teams are an age-old hindrance to the eDiscovery process. And yet, it is one that all too often remains unaddressed.

Achieving pain-free collaboration between IT and legal is a two-way street. Legalese and technical jargon are both roadblocks to effective teamwork in their own right, so ensuring everyone is speaking the same language should be the first priority.

An atmosphere of exclusion or isolation will likely lead to tasks being treated like box-ticking exercises, rather than two equally invested parties striving for a mutual goal. Lack of investment or engagement either side if also what can lead to damaging oversights.

Communication between departments needs to be frequent and proactive on both sides.

Top-down organisational support (usually from the General Counsel and CIO) is crucial to driving all of the above.

 

Most if not all forms of ESI will be ingrained with some form of metadata. This could be information such as who sent a given file, who accessed it last, the time a given communication was initially sent, and so on. As such, it can be of paramount importance to a legal investigation.

Whether it’s a result of human error within the team or lacklustre systems, the potential ramifications of neglecting or not presenting sufficient metadata can be severe.

A party who is deemed to have removed metadata can be sanctioned for spoliation of evidence, and should a legal representative fail to produce evidence with sufficient metadata, the opposing party may file a motion to compel.

All of the above can of course incur significant – and what’s worse, easily avoidable – losses in terms of time, money and professional reputation.

Often the use of legacy systems or other platforms which are not purpose-built for eDiscovery (such as Adobe, Outlook or the wrong cloud-based tools) can lead to file format and conversion issues, altering or even deleting the metadata of a file once it’s uploaded or shared.

Dedicated eDiscovery tools on the other hand will include metadata as a load file that preserves the native metadata when reviewed.

 

eDiscovery was founded to change the labour intensive nature of managing, storing and classifying legal documents. Unfortunately, poor choice or misuse of eDiscovery software can counteract the very efficiencies it was intended to create.

As mentioned in our earlier mistakes, some legacy systems may lack compatibility with newer forms of media such as mobile apps, instant chat messages and social media communications, or they may not be able to preserve vital metadata effectively.

Others may lack necessary language translation features, or be unable to effectively tag, group and index ESI.

The lattermost feature is what you need to quickly crawl reams of documents and files and accurately determine the relevance to the case at hand. Using a solution that lacks these capabilities will lead to greater costs and strain on resources due to over-inclusive data collection, or worse, potentially lead to under-inclusive data collection.

Want to know how you can tell which eDiscovery software package is right for you? Discover all the key need-to-knows in Digital Justice: How the right eDiscovery solution can prepare litigation teams for digital transformation.

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