E-discovery – Approach The Problems Head On
The continuous increase in the volume of Electronically Stored Information (ESI) has resulted in an ever increasing need to support and enforce legal and compliance requirements. This has made e-discovery a highly specialized field.
Prior to 2006, discovery involved review of predominantly paper documents and was comparatively cheaper to what it is now. The Federal Rules of Civil Procedure (FRCP) was amended to include e-discovery in 2006. A high e-discovery cost has been a core problem in civil litigation since its introduction. It still discourages many attorneys to adopt it in their litigation process. Document review process constitutes 60% to 80% of the total cost and is seemingly the most expensive part of e-discovery.
Document review is done in two phases. The first pass review mainly deals with the identification of probable relevant documents by quickly and efficiently removing the probable irrelevant documents. Thereafter the next “Protections” review stage begins. The second pass review is critical and expensive wherein the documents classified as relevant are reviewed further for privilege and confidentiality, redacted and labeled as necessary. The documents are often ‘issue tagged’ for the use and convenience of trial lawyers.
Many clients suggest elimination of second pass review to save expenses. However, confidentiality and claw back agreements do not necessarily protect wrong documents from getting passed on in a majority of the cases. As attorneys, it is our prime duty to ensure that our client understands the need for second pass review.
The Artificial Intelligence (AI) or predictive coding software has helped reduce the cost of first pass review since it was introduced in 2011. First pass review if done manually typically accommodates a range of 50 to 100 files per hour. AI software, however, can attain speeds in excess of 1,000 files per hour or more.
In 2014, Bridgestone Americas, Inc. v. Int. Bus. Machs. Corp., case, the Court approved the plaintiff’s request to use predictive coding to review over two million documents, despite the defendant’s objections that the request was an “unwarranted change in the original case management order” and that it would be unfair to allow the use of predictive coding “after an initial screening has been done with search terms.”
For second pass review, the usage of AI software is still not universally accepted. Most of the corporate clients are reluctant to rely exclusively on automated software to protect their critical documents. They are of the view that the critical documents should reviewed manually.
With the use of AI software and proven processes, the relevancy review becomes much more accurate. However, AI software is not economical for small cases as it has its own transactional cost. Hence, cases which typically involve a budget of less than $25,000 for document review do not get the benefit of automated review.
The usage of AI software not only depends on the costs incurred with vendors for use of the software, but also on the costs of using a qualified SME to do the AI enhanced reviews. It also depends on the value of the case.
The non-AI approach relies mainly on tested keyword searches wherein we do not just guess the probable keywords but also use witness interviews and other factual research and analysis to derive various possible terms. It is easier to use, requires less sophisticated/expensive software, and also less SME involvement. But, compared to AI enhanced review it is far less reliable. Moreover, when volume of documents is high, it is far more expensive.
Email is the one most common type of electronic document in e-discovery today. The degree of complexity of emails and their attachments with various types of documents make the discovery process in emails arduous. This leads to different review speeds, review costs and confidentiality concerns. Some for instance, may have large amounts of privileged or confidential communications which takes more time to review and can also notably drive up the costs of the second pass review. To deal with the skyrocketing e-discovery cost, the producing party should determine the budget depending upon the production requests as well as the merits of the case. The budget should either be by agreement of the parties or by court order. The maximum number of documents that can be reviewed within the budget should be estimated. Clients should be aware of their ESI collection efforts before making an estimate.
With the use of AI software, the producing party can limit their review and production to the documents with the highest relevancy. The requesting party is also benefited from this as they can also limit their expense to review the limited documents produced to them. They can be reasonably assured that AI software has discovered the documents of the highest value. It gives value for money to both the parties.
All cases today have a lot of electronically stored information. E-discovery has gained utmost importance in this scenario, with or without AI enhanced predictive coding.
The views expressed are that of the author’s and TaurusQuest is not responsible for the contents or the views expressed therein. If any part of this blog is incorrect, inappropriate or violates the IP rights of any person, please alert us at firstname.lastname@example.org. We will take immediate action to correct any violation.
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