Published Jan 26, 2023. Updated May 5, 2023.
To quote Michael Arkfeld, a leading author in eDiscovery, "approximately 80-98% of initial data collected for review will be eliminated," and resources spent on it will ultimately go to waste. Indeed, over-collection of data is a common reason for excessive review costs. And yet, despite this tendency to over-collect, we typically miss key evidence that lies outside the scope of our eDiscovery search parameters or custodian list.
The Old eDiscovery Search Paradigm
The reason for the above issues can be found in today’s archaic eDiscovery process, designed around yesterday’s technology which still persists despite modern advancements.
eDiscovery search technology has traditionally been limited by its inability to search large amounts of data, and its inability to navigate complex searches. As the scale and complexity increase, time becomes a prohibitive factor. To combat this, we’ve typically simplified our searches, resulting in excessive volumes of data, of which a high percentage is irrelevant. We then throw this data into a review platform and hand it off to legal counsel for review, which of course comes at a premium cost.
In this approach, we’ve accepted that our initial collection is mostly an administrative process, and that the real analysis and brainpower should be put later in the EDRM. However, the downfall is that this initial collection has actually become the limiting factor in the entire eDiscovery process, simultaneously flooding us with irrelevant data while bottlenecking real evidence.
Prioritizing the Early Stages
A better approach that companies are now using is to leverage the initial search to gain an early advantage in the case. In recent years, tools have been developed that are designed to search across massive volumes of data and pinpoint relevant evidence while cutting down irrelevant data. By performing faster initial searches, companies have been able to get more insight early, and go through more iterations of searches to get a better picture of the case. To illustrate the significance of a fast search, consider what would happen if a Google search took several hours, or even days. The concept of changing your search after scanning the initial results would hardly be an option in practical use, and finding answers on the internet would become an entirely more difficult process.
Fortunately, in reality, Google search is nearly instant, and therefore we can go through multiple iterations of our search until we get exactly what we want. In eDiscovery, these iterations, alongside the capability to perform highly targeted searches, can enable us to zero in on relevant data. Search becomes an opportunity to explore and follow threads, that may lead to new searches. It is this exploration that leads to discovering the complete context of the case, versus the “dumb” searches that are often used today. In doing so, companies can discover enough about the case to all but bypass traditional eDiscovery review and can often settle on more favorable terms.
Weaponizing eDiscovery Search
In the early stages of eDiscovery, search-term negotiation sets the rules of the “battleground.” However, companies are often handicapped by the limitations of search, without enough information to fully understand the grounds of the negotiation. How can you negotiate without deep insight into the evidence that the proposed search-terms will return?
What we are now seeing, however, is companies starting to come to search-term negotiations armed with much more information, and using it as ammunition. For example, the opposing party may ask for evidence responsive to several, broad searches. Companies using the latest search technology can quickly determine exactly how many documents those searches will return and explore alternative searches. By asserting that the initial search-terms will be overly burdensome, there is an opportunity to propose more favorable and more targeted search perimeters.
It is through the ability to get instant feedback from a search, and go through multiple iterations to refine it, that companies can come to search-term negotiations with a greater advantage than previously possible. Below is a snippet which explains how search term reports can leverage eDiscovery and shape the playing field.
New search technology is empowering legal teams in the early stages of eDiscovery like never before. With 95% of cases settling before trial, innovative companies are shifting their focus to the critical first steps where they can gain a strategic advantage.
Today, it is not in courtrooms where cases are won, but in eDiscovery. So, we are making it easier for innovative enterprises to gain a strategic advantage in cases. If your company seeks to win more cases and settle faster, register for our free webinar on this topic on January 31st.