Five eDiscovery Lessons from Top Firms that Lawyers Can Implement Now

Ed. note: Above the Law has launched a brand new eDiscovery Resource Center in partnership with Recommind. Stay on top of the ever-changing eDiscovery and predictive coding landscape with our practical tips, insightful white papers, and webinars.

At Recommind, we regularly take the initiative to learn what lessons can be distilled from firms that are having real success in discovery practice. Here are five of them:

Despite all of the articles lamenting the rapid growth in data volumes, litigation is still won and lost with a handful of witnesses and a few dozen documents. Regarding this issue, the head of litigation for an AmLaw 50 firm shared with us that, for him, litigation was still about the binder of documents he was glad he had found – and the binder of documents he wished he hadn’t found. Discovery solutions, he explained, that didn’t address those needs were missing the mark. Given the strength of this lesson, we’ve incorporated it into our discussions with other lawyers in recent months and found that it resonated with litigators, especially those who practice outside of the eDiscovery bubble (in other words 99% of the litigators we interact with on a routine basis).

Litigation is often reactionary. As a result, lawyers typically act with imperfect information, unbelievable time constraints, and unrealistic client expectations. While all of this can lead to a variety of problems, the most acute of these is the clouding of litigation objectives. Once sight of the goals is lost, it is too easy to behave in haphazard fashion. One of the worst consequences that can occur is the procurement of technology solutions that weren’t really designed for the challenge at hand. While every eDiscovery vendor has tools to tackle the review process, not every tool is equally suited for every case. The firms that are making the discovery process easier for their clients are the ones that understand the goals of the case (not just winning and losing the case), understand what is needed to achieve those goals, and then act accordingly. Lesson two: Set your goal and keep it in focus at all times.

We have repeatedly emphasized that predictive coding shouldn’t be “a thing” in the review process. That is, it shouldn’t be something that is either used or not used as some sort of magic elixir for review. Several of the law firms we’ve spent time with are trying to reinforce this idea in their own discovery practice groups. The idea is that predictive coding carries an emotive connotation that makes some people nervous (will some critical document be left behind?!?). But when we position predictive coding as just one of many effective review methodologies that can be used in a variety of use cases (e.g., quality control to check the work of the human review team), the tension surrounding this topic seems to dissipate. Additionally, some firms on the leading edge are even changing how they talk about the technology in order to eliminate motion practice. These firms talk about predictive coding as a way to “prioritize” the document review process. And this subtle difference is helping them avoid motion practice on the topic. Lesson three: predictive coding is one of many useful tools that can be used in discovery and can be deployed in a variety of ways.

Despite recent rulings from the Progressive and Bridgestone cases, many firms do not appear too concerned with whether the use of predictive coding would be approved by a court. Most of the firms we’ve spoken with feel comfortable with the following set of realities: (1) the “defensibility” of predictive coding is a highly fact specific question that hinges on the reasonableness of efforts made, and (2) this was always the standard for responding to discovery despite the technology used. So what was once the hot button issue has seemingly become far less important. And this should be expected; after all, Da Silva Moore is now over two and one-half years old (happy birthday!) and the case law has advanced to other questions about the usage of the technology (e.g., the circumstances when a party can use keywords before using predictive coding). But even as new cases come out, lawyers are beginning to understand that there is no “one size fits all” for obtaining judicial approval of the process.

This was the one that perhaps shocked us more than the others: flexibility and creativity? But what if something goes wrong in the process? What if my production misses key documents? All of these concerns are still present, but we’ve noticed a real shift in thinking among some of the firms on the leading edge of discovery (by the way, they may not be the firms you think are on that leading edge). These firms are willing to accept and even embrace the reality that discovery is a messy process and knowledge of the case is constantly evolving. The firms that are able to get through it the best are doing so by building flexible workflows that can adapt to changes in the understanding of the case. They are willing to experiment with search technologies and processes to find the key information in their data. For all of the criticisms about lawyers’ unwillingness to innovate, we’ve have had the privilege of spending time with many lawyers who are willing to do so (even if they might roll their eyes when they hear words like “disruption” and “innovation”).

Are these lessons on track with your experience? Are there critical lessons we’ve missed? Share them with us at @Recommind. Check out more eDiscovery resources in ATL’s new Resource Center, sponsored by Recommind.