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4 practices to get your e-discovery process recession-ready

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The COVID-19 pandemic has upended life as we know it and brought the looming recession to the forefront of many business executives’ minds. Realizing the pandemic’s lasting effects on our economy, organizations are looking to cut costs wherever possible, which often means learning to do more with fewer resources.

Start by looking at your organization’s most expensive processes and thinking of creative ways to reduce costs without sacrificing effectiveness. For many companies, especially those involved in frequent litigation, e-discovery is likely near the top of their legal cost list. We already know e-discovery is an expensive process, but we should also understand that lacking procedures to handle e-discovery strategically and efficiently will almost certainly exacerbate those costs.

For many companies, especially those involved in frequent litigation, e-discovery is likely near the top of their legal cost list.

4 Best practices for e-discovery

To keep your organization running smoothly and within budget, consider re-evaluating your approach to e-discovery. Following the four practices outlined below will help prepare your organization for what’s to come and ensure you’re ready to weather any storm.

1. Make e-discovery a standard business process

Unanticipated lawsuits often result in panicked “fire drills,” with company executives rushing to figure out what to do and how to do it. The current pandemic has already brought on its fair share of uncertainty, making it even more important for companies to establish a proactive approach for handling litigation and e-discovery. By standardizing the process and putting a plan in place now, you will save time and money in the long run and ensure that you’re well-positioned if and when a legal matter does arise.

Think of the process as being similar to any other continuity plan you have in place. It should include step-by-step instructions for everything from initial legal holds to producing final documentation in court. The plan should be well documented and shared with key members of the organization so that each person understands their role.

2. Consider remote collection and custodian questionnaires

Business travel is often suspended or significantly limited during pandemics and recessions, meaning technicians may be unable to travel across the country to gather data that might be relevant in a legal or regulatory matter. Fortunately, remote collections allow technicians to easily collect the necessary data, and at a fraction of the cost of traditional collection methods.

Data stored in a cloud-based system can be collected remotely from anywhere. Local data on in-house servers and employee devices (laptops, mobile phones and tablets) can also be collected remotely. While some occasions may require a technician to access the data in person, those scenarios are becoming less common.

Face-to-face custodian interviews are another step in the e-discovery process that are often limited or curtailed entirely in a pandemic or recession due to concerns over safety or expense. Companies should instead consider custodian questionnaires, which are critical to effective and efficient data collections.

A well-prepared custodian questionnaire will help you target the right data sources and the appropriate custodians, both within and outside of your organization. Questionnaires should also include factual questions about the legal matter to help prepare interviewers in case any subsequent in-person custodian interviews are deemed necessary.

Taking the time now to evaluate—or establish—your e-discovery process gives you the ability to better control the related costs.

As a note of caution—be wary of “free” online survey software, as it will likely require you to give up any expectation of privacy in exchange.

3. Avoid the collection of unnecessary data

The amount of data in the world is already mind-boggling and it only continues to grow. By 2025, it’s estimated that 463 exabytes of data will be created each day globally, according to the World Economic Forum. That’s the equivalent of 212,765,957 DVDs per day.

When sifting through the growing mound of data at your organization to find what might be relevant to your legal matter, it’s crucial that you use the right tools and processes to help exclude any clearly irrelevant data.

The collection of unnecessary data results in one of the largest avoidable e-discovery costs. Using the right technology and processes to exclude non-relevant data at the earliest stages, you can reduce your costs in every subsequent step. For example, de-NISTing and Known File Format (KFF) elimination can help weed out system files, program files, and other non-user-generated data before that data is ever collected.

4. Leverage machine learning for document review

With 73% of all e-discovery costs spent on legal document review (according to a RAND study), it’s easily the most expensive part of the e-discovery process. However, with a combination of the right people, processes, and machine learning systems, you can reduce those costs while also improving accuracy, quality and efficiency of the review.

Machine learning systems—often referred to as technology-assisted review (TAR) in the e-discovery world—are able to dig through large amounts of data, locate potentially relevant data, and make attorney review calls with a high level of precision. That said, the human component is still a critical part of the equation. People are the ones who initially train the machine learning systems, so the quality of the machine results hinges on the quality of that human input. Additionally, it’s crucial to have knowledgeable experts who quality-check the results on a regular basis and fine-tune the process as needed.

This hybrid approach to document review can result in benefits—such as greater efficiency, accuracy, and cost savings—that apply across every single case, regardless of size or complexity.

Getting positioned for success

The realities of this pandemic can be difficult to bear. Resources are already being stretched to their limits, and employees are working at max capacity. Taking the time now to evaluate—or establish—your e-discovery process gives you the ability to better control the related costs. With some advanced planning, and by leveraging the right tools, technologies, and practices, not only can you accomplish more with less, but you’ll position your organization for success in the economic times ahead.

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