By Joshua Tolles and Sara Skeens
Solving Challenges in the Presentation Phase
In our last post, we discussed the value of looking at analytics in e-Discovery with a creative mindset, and a few steps that you can take to expand your problem solving horizons. As we noted there, analytics is most commonly thought of as a tool to be applied during the review phase of the EDRM to control data sizes; however, we'd like to change that. At Altep, we frequently use analytics to solve many more problems than just those found in the production review arena. With a firm grasp on the technology, plenty of curiosity, and a healthy passion for "building a better mouse trap," we have found quite a few areas where analytics can help turn the eDiscovery rat race into a more methodical and scalable process.
The presentation phase of the EDRM is one such an area. While the EDRM roadmap tells us that analysis occurs in conjunction with review and production, much of the real analysis work is done post-production, in the time leading up to presentation. Cases are often made or broken at deposition, and most certainly at trial. Thorough preparation and a crystal clear understanding of the facts and available evidence are essential to success. However, you may encounter any of several potential pitfalls as you meet your discovery deadline and begin preparations.
The First Challenge – The Chaotic Nature of Production Review
Production review projects often present themselves with short notice, plenty of pressure to meet production deadlines, and a fair number of scope changes along the way. Those all-too-frequent circumstances, to put it mildly, are not conducive to planning and organization. This is especially true when it comes to identifying, collecting, and cataloging critical witness documents. Even with the best preparation and planning intentions, projects often get bogged down in the day to day details, and true analysis unavoidably becomes somewhat of an afterthought.
With initial review efforts complete, you find yourself needing to make sense of what you have just produced to the other side. Data volumes here are often large, and teams simply don't have the time or the resources to re-review everything to determine if it really is a critical document in the case. Much of the work has been done in 1st and 2nd level review. However, as the one presenting the case at deposition or trial, you need certainty that nothing critical has been missed. The balancing act begins.
The Second Challenge – Opposing and Third Party Productions
In addition to the struggles of organizing your own documents, you are now forced to juggle the resources and time needed to make sense of the documents you have received from other parties and non-parties. Production specifications for the data provided are often agreed in advance. However, interpretations of Responsiveness can be wildly different. In addition, these data sets are often made up of unfamiliar document types, and will likely discuss key concepts in terms that differ from those used in your own data set, since each organization has its own way of describing and discussing its activities.
Production document sets you receive can easily be of similar size to your initial review set, and possibly larger. Luckily, you've been around the block at this point, so you have your teams and processes in place. However, deciphering the value of what has been provided and chasing down leads on new issues or facts as a result is no small feat. This is especially true as competing interests begin to butt heads.
The Third Challenge - Time Constraints
As Benjamin Franklin said, "lost time is never found again." While that statement is most certainly true, with advanced techniques and technologies, the time we once squandered on inefficient methods can now be put to better use. This has been especially true as the nature of discovery has changed so dramatically over the last decade. The challenges above, among others, must be overcome on a compressed schedule, and with plenty of other small problems popping up along the way. The penalties for missing discovery deadlines can be severe. However, they pale in comparison to the thought of missing a critical detail needed at trial due to a lack of resources or the emptying of an hourglass. The passing of time is uncompromising, and more than anything else it dictates that we adjust our approach so we'll be able to meet our obligations.
The Answer - An Adaptive Strategy
In the face of these many challenges and so little time, an adaptive strategy is critical to success. At Altep, we have developed those adaptive strategies using a combination of analytics and more traditional eDiscovery data paring strategies. In the next installment of this series we will talk more about how we utilize tools like e-mail threading, near duplicate detection, conceptual analytics, and hashing to turn back the clock and provide case teams with the time they need. Further, we hope you will join us for our upcoming webinar, where we will partner with kCura to explore these challenges and solutions in detail, and answer as many of your questions as we can.