Jones: The era of DIY e-discovery has arrived
By Brian S. Jones
As we emerge from a long period of Zoom meetings, depositions, hearings, and even trials – all of which largely involved attorneys doing things themselves – we will soon find out if the technology we used during the pandemic is becoming a permanent part of our practice.
There are far too many changes underway in legal practice to discuss in a single article. But at least when it comes to eDiscovery, I hope the do-it-yourself eDiscovery trend is here to stay. What do I mean? Let me explain it this way. I started practicing law in the early days of e-discovery, and despite their incredible appearance back then, the first e-discovery platforms were not DIY at all. Instead, they needed a significant amount of support just to make them work. This led to the emergence of litigation assistance specialists responsible for ensuring that data received from opposing parties was compatible with the platforms used by their firms, uploading this data to the firm’s platform, and then to perform a series of sometimes complex and often indecipherable operations. steps for the text, image, and metadata associated with a document to display correctly on screens. This process was both time consuming and expensive – and it all had to happen before the first document could be checked out for review. This is because when the opposing lawyer data arrived, you had to send it to the litigation support staff to handle the upload and processing. It may take days, or even a week or more, before you can actually start preparing your case.
Additionally, most early document review projects required consultation prior to setting up the review environment, such as identifying search terms and custodians that would be prioritized, not to mention review sessions. training of examiners on the use of the exam platform, which was sometimes not the same as the platform used to manage the data. If you’ve gone halfway through the review and realized that the new custodians or terms were larger than originally expected, it might require a serious retooling, or worse, a complete overhaul. And where was the data kept? It was on the company’s servers and was often only accessible on the local network. If you found out that you needed a document while testifying out of town, you had to take a break, hoping that the person in charge of litigation assistance called you and asked that the document either faxed or printed. If you’re lucky, this might work. Otherwise, well. What if this server crashes or is not properly backed up? Again, well.
My point here is not to complain about how “you kids have it so easy these days”, but to show that because of the way eDiscovery platforms worked, Lawyers conducting a case often had the least knowledge about the documents that were assembled, the formats in which clients and opposing parties kept their data, and how the review was conducted, all essential to understanding how to approach and judge a case. It was not ideal.
Fortunately, things are better now. Most of the major eDiscovery platforms are now cloud-based, fast, less expensive, and more importantly can be largely managed by lawyers themselves. So if you are a DIY lawyer, like most of us were last year, the era of DIY eDiscovery has arrived.
My favorite platform for DIY e-discovery is Everlaw. It is completely cloud-based, which means you only need a browser to use the platform; no installation is required. I can take documents from clients and opposing parties (native, PDF, or preprocessed) and upload them directly from my computer – no middleman and no wait required. Everlaw automatically analyzes uploaded documents, extracts text, gathers required metadata, and prepares documents for review in (almost) real time. So instead of waiting for days or weeks, I can start revising right away.
If I want to add another review, just invite it by email; there is no additional cost per user. Scaling for bigger reviews is instant and at no additional cost. If, as often happens, we find that certain custodians or terms are more important than originally intended, we can change persistent highlights, codes, and revise settings on the fly. Predictive coding models (there may be multiple) are also updated in real time based on feedback from reviewers across the database. The only charges for the service are the hosting charges based on the number of gigabytes downloaded. Producing documents is as easy as uploading them, privilege logs can be created automatically, and there is no additional cost for production. Like other cloud-based services, when new features are added, you get them instantly. There is no charge for a new version every few years. It’s also blazingly fast, has an attractive and easy-to-understand user interface, and the security is industry-leading. Basically, if you can find out how to share a photo on Facebook, you can find out how to review and produce documents on Everlaw.
But Everlaw is not the only player in the fiercely competitive e-discovery market. RelativityOne, DISCO, Logikcull, Nextpoint and Exterro, among others, are doing some very interesting things. All of them work on any major browser on any device, so whether you’re in the office, at home, in a hotel, on a plane, or even on trial, as long as you have access to the internet, you have access. to your favorite platform. These platforms are also rapidly increasing the types of data they can examine, which is useful given the number of companies that have adopted communications apps like Slack and Teams during the pandemic.
At the heart of these changes is the focus on end-user empowerment, which means that lawyers can be at the center of the eDiscovery process – which, in turn, should translate into more high efficiency, lower costs, and better outcomes for clients, which is what all the point of legal technology is meant to be. So if you’re looking to change the way you do e-discovery, now it’s as easy as going online and doing it yourself.
• Brian S. Jones is a partner at Bose McKinney & Evans LLP and co-chair of the firm’s insurance group. The opinions expressed are those of the author.