As the world becomes more and more digitized, so, too, does the legal industry. That’s particularly true within the context of discovery. The fact is that every single case you litigate could involve electronically-stored information (“ESI”). Not all of them do, but the percentage grows every year.
And as more and more cases incorporate ESI, you’ll need to refine how you conduct discovery with electronic documents and, necessarily, how you might use eDiscovery software to manage that discovery process, including how you produce, review, and use documents in briefs and in court.
Sure, eDiscovery can be relatively straightforward when you’re just reviewing a few emails, PDFs, and Word documents. But what happens when your case turns on data in thousands of files with unfamiliar extensions? Learning more about how eDiscovery works will help you better organize, tag, and redact your document production and your opponents’ and gives you the best odds of winning your case.
We’re here to help you get more familiar with the topic and to give you a crash course on eDiscovery software.
What exactly is “electronic discovery?” For starters, it is exactly like regular discovery and completely unlike it all at the same time. eDiscovery is the process of requesting, organizing, reviewing, analyzing, producing, and using case-related ESI to advance your client’s claims or defenses. But rather than reviewing countless bankers’ boxes full of paper documents that you’ll then need to copy and share with your client or opposing counsel, eDiscovery usually involves uploading all the electronic data related to your case into a central location to work through the process more efficiently, either manually or by way of specialized eDiscovery software.
The eDiscovery process is fairly straightforward:
- Collect all potentially-discoverable ESI—including phone messages, emails, texts, snaps, Facebook messages, scanned paper documents, Slack messages, and the like—and upload the data to a central location, ideally in a searchable format. Think Google Drive or Dropbox.
- Review the data, tag files for relevant keywords, mark documents for privilege, redact as necessary, and take notes to help you on your discovery or litigation journey.
- Produce discoverable information to opposing counsel in the format you choose (or, more likely, the form dictated to you by the court or upon which you’ve agreed with opposing counsel beforehand). Except now it’s really easy because all your documents are in one place. Don’t forget to Bates stamp!
Doing all this manually can be cumbersome and expensive. You’ would need multiple windows open to review different file types and take notes, then fire up a completely separate process to compile documents, Bates stamp them, and produce them in a responsible and manageable way. eDiscovery software helps streamline this process. You can view most files types through a single window, search through files more easily, and produce organized files in a series of clicks.
So eDiscovery software sounds pretty nice, right? It is. But you can’t treat eDiscovery like run-of-the-mill paper discovery. This is a digital process analyzing large amounts of data, so you’ll need a different thought process and a different approach to account for all you need (and without overspending). After all, eDiscovery tools are just data analytics software, and you only want to review data that are potentially relevant or discoverable in your case. We have a series of articles about preparing for eDiscovery to help get you started. But if that feels overwhelming, here are four high-level hints:
- Do your research. Most eDiscovery success stems directly from front-end work. Talk with your client to get case specifics. Then capture what you need using relevant dates, systems, software, and document custodians. Oh yeah… and remind your client not to delete anything.
- Be particular. It’s easy to request every single document from Jane Doe from 2011-2018, but that’s 7 years worth of data (and Jane Doe may have only been tangentially involved in the important parts of your case). Be particular about the scope of your discovery requests to avoid wasted time, money, and resources. Failing to be particular here can result in the need for you to review months or even years of extra data you won’t need.
- Think about the data files. Once you get a list of possible custodians for data you’ll need, you can be even more particular about the documents you request. Will a 20-something intern use the same files as a 60-something law partner? Think about who you will be requesting from and what you’re looking for as you draft document requests.
- Review with purpose. After gathering all the necessary information from your client, you’ll craft your internal document review strategy and the process you’ll deploy to unearth the needles in this particular set of haystacks. This is true whether you’re reviewing data produced by your opponent or preparing to disclose your client’s data. What you’re looking for may differ depending on whether you’re preparing for depositions, trial, arbitration, or even for settlement. Deciding on your strategy and reviewing that strategy frequently as the litigation progresses helps ensure that you won’t miss anything.
The benefit of using eDiscovery software is not just the efficiency factor—the ability to conduct an organized and speedy document review and production process—but also the ability to work with those companies’ success and strategy teams to help you build out the best eDiscovery strategy for your particular case.
Small Firm eDiscovery Software (Alphabetical List)
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- Everlaw is a powerful cloud based eDiscovery software with robust features to not just review documents but to also build your case narrative. Learn more about Everlaw.
- Lexbe is a cloud-based eDiscovery processing and document-review software entirely accessible through your browser on any internet-enabled device. Learn more about Lexbe.
- Logikcull is a cloud-based eDiscovery software that allows you to tag, redact, annotate, and share just minutes after you upload your documents. Learn more about Logikcull.
- NextPoint is a cloud-based eDiscovery software that provides additional data and strategy support from its experienced team of experts. Learn more about NextPoint.
- Page Vault is an online web capture company that helps you save and print online content complete with key metadata to help you build your book of evidence. Learn more about Page Vault.
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Small Firm eDiscovery Software Feature Descriptions
Predictive Coding. As you process your documents and set your parameters, eDiscovery software with predictive coding can pre-tag documents before you even start reviewing them.
Optical Character Recognition (OCR). OCR converts scanned images into searchable documents.
Bates Stamping. A basic but essential feature.
Production Log. Keep track of which documents have been produced in discovery.
Collaboration. eDiscovery software with collaboration gives you the ability to batch and share documents with other users, like co-counsel or independent contractor document reviewers.
Free Consulting. Need extra help with your software or eDiscovery/ESI strategy? Some vendors include free consulting (above and beyond standard tech support) as part of the cost.