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8 myths about ediscovery, and the truth behind them

Ediscovery software can save legal professionals time and money. But some lawyers have misconceptions about ediscovery workflows and technology, leaving them susceptible to large unexpected costs, wasted resources and, potentially, embarrassment in court. Here are some common myths that are leaving lawyers vulnerable to costly mistakes:

1. Ediscovery is too expensive

Lawyers who believe ediscovery is too expensive might not acknowledge the cost of doing discovery manually, and the impact it has on their litigation case management.

When considering any ediscovery software, legal professionals should ask themselves how much their time is worth. If using an ediscovery tool saves even an hour or two, that is money saved, although they’ll probably end up saving much more. One study found that, during litigation, it takes an average of 51 minutes for a lawyer to find a key document. If using an ediscovery tool, the average drops to 16 minutes (that’s a 69-percent time savings).

Manual discovery means wrestling with a combination of PDFs, hard copies, Word documents, emails and a host of other different formats of documents. It means creating a privilege log by hand and keeping track of coding decisions. Data about each document – author, date, and so on – must make its way into a spreadsheet by manually keying in that information. By using ediscovery tools, that same data, often referred to as metadata, is automatically gathered in one place and the creation of a privilege log can also be automated. Lawyers can also filter on the relevant data categories as needed and effectively search across all documents at once.

No one understands this better than the younger associates who do the bulk of discovery work. Often, they resent mundane tasks that could be easily automated primarily because their time and skills are not being utilized for higher value work. Without the tools necessary to do their jobs efficiently, on top of being held to higher standards, these employees are a turnover risk for the firm.

2. Adobe® and Outlook® are fine for ediscovery

Outlook and Adobe, unlike proper ediscovery software, create more complexity and limitations to a litigation case management workflow. Most lawyers wouldn’t think to index their documents for search, for example, because it’s hard to do manually. But once they use a dedicated ediscovery tool, they realize how useful it is to have an index and see how easy it is to create one.

Here are some other reasons that Adobe and Outlook are not a good fit for ediscovery.

Adobe:

  • Redactions. Adobe redactions are not automatically burned in. A lawyer can redact material, and the opposing counsel can lift those redactions, unless the relevant metadata is scrubbed. That can create legal and malpractice problems
  • Bates numbers. Adobe allows users to add Bates numbers to documents, but it doesn’t track those numbers as a searchable field. This greatly diminishes their utility. Unless the proper steps are taken, Bates numbers can also be removed from documents much like redactions. 

Outlook:

  • Control. Some lawyers ask their clients to perform searches in Outlook, and to send them the results. That presents a risk to the law firm, because it allows the client to direct a portion of discovery.
  • Metadata. If the client performs a search and then forwards the documents via Outlook, the original metadata will no longer appear in the proper fields. In fact, the metadata changes, i.e. author becomes the client, recipient becomes the attorney.  That creates problems in production and can result in claims of spoliation.
  • Limited search capabilities. Outlook’s search function is slow. It doesn’t index searches well. Outlook has limited Boolean searching, and no proximity searching.

3. This matter is too small for ediscovery

Even a smaller matter can easily generate one to two gigabytes of documents. That’s the equivalent of approximately two bankers’ boxes stuffed full of paper, which is still a substantial amount to wade through. Even cases with less than a gigabyte of data can still generate hundreds of documents. It can take a week to review that much material manually. With an ediscovery tool, it can be done in a few hours.

Too often, when a lawyer needs a specific item surfaced in discovery, they need it yesterday. They don’t have time to be going through documents manually, or to open every single PDF to search each one individually. Ediscovery tools allow you to load and tag documents quickly, and to search across all of them easily. Ediscovery tools also support de-duplication and email threading, which are timesavers on cases of any size.

4. Metadata doesn’t require much attention

Metadata contains information such as who sent a file, who accessed the file last, the subject line, and at what date and time a communication was sent. This information can be critically important in litigation. 

Dedicated ediscovery tools include metadata as a load file that preserves the native metadata when reviewed. Unfortunately, a lawyer who is using, say, Outlook, for discovery can very easily alter the metadata by accident. Without the proper precautions, the simple act of pulling emails onto another computer can change the metadata. Uploading data to a cloud-based tool that isn’t specifically designed for ediscovery can have the same effect and can even delete the metadata altogether. These alterations can constitute spoliation of evidence or prompt further discovery, ultimately increasing costs.

5. You can beat the motion to compel

What happens if a lawyer produces documents without proper metadata? In some cases, the opposing party files a motion to compel.

Too often lawyers seem to think this will never happen to them, or that if it does, they can easily beat the motion. But in 2015, the Federal Rules of Evidence created a uniform standard for spoliation sanctions if electronic information is lost because “reasonable steps” were not taken to preserve it. Further, documents must be produced “as they are kept in the usual course of business,” which means that a group of emails, for example, are not to be produced as a massive PDF file.

Fighting a motion to compel is costly, why not do it right the first time?

6. Search terms are a highly effective way to analyze electronic data

Although there is nothing wrong with using search terms to analyze electronically stored data, other tools can be faster, less expensive and more powerful. Tags, in particular, can help group documents together by subject, just as a sticky note or file folder does. Additionally, searching isn’t that efficient if the software isn’t specifically designed for legal work: searches can be slow, inexact and incompatible without common Boolean functions.

7. Ediscovery is too complicated

This myth might once have been true. But the past few years have seen an impressive improvement in the user experience provided by ediscovery software. Ingesting a document can be ridiculously easy – just drag and drop, and the documents are immediately uploaded. Metadata, documents and images are made automatically searchable through indexing and OCR. While most ediscovery tools offer training, some lawyers can get their production done without any instruction at all.

8. I only need to shop for an ediscovery tool when I have a large, active matter

It’s not uncommon for a lawyer to suddenly see that they need help with discovery, and they need it within 24 hours. Small matters can quickly grow in volume, especially after receiving load files from the opposing counsel. It makes sense to have a system in place before the need is dire. That way, the lawyer can get to know the people who are assigned to support their account. They can learn their way around the software and realize the efficiencies for matters that involve only a few hundred documents. Because ediscovery software is powerful and can produce meaningful advantages when used for small and large matters alike. 

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