In litigation and investigations, parties must locate, preserve, collect, process, search, review, analyze and produce documents to the requesting party. Today, this process is mostly digital, since most documents are created, stored, and exchanged in digital form. This process is called electronic discovery.
Why do you need eDiscovery software?
Although it is theoretically possible to use a manual process, when faced with potentially Terabytes of data in any number formats stored in any number of internal and external systems, it is simply not practical or desirable. The volumes associated with many matters will overwhelm even the largest legal teams with excessive costs and time—making the effort disproportionate to the importance of the matter being litigated.
The idea behind proportionality is detailed in Federal Rules of Civil Procedure (FRCP), Rule 26(b)(1), which provides guidelines for civil litigation to “secure the just, speed, and inexpensive determination of every action and proceeding.”
The intent of proportionality is to safeguard against overly expensive discovery, which is virtually impossible to achieve manually, especially where cost and time are factors. eDiscovery software is the only way to effectively meet professional and legal obligations in an increasingly digital and complex world.
What is eDiscovery software?
Competency in eDiscovery is now a necessity of modern litigation, and it is virtually impossible to do it manually, especially where cost and time are major factors.
eDiscovery software automates many of the steps in eDiscovery, such as data ingestion, processing, review, analysis, and production. By reducing the inefficiencies associated with manual eDiscovery tasks—particularly document review—legal teams can save both time and money. Moreover, lawyers and other subject matter experts can move from mundane tasks and first-pass review activities to case strategy and analysis.
Who uses eDiscovery software?
Typically, lawyers, litigation support staff, paralegals, and reviewers use eDiscovery software for managing civil and criminal cases. It’s not just that it is more efficient and cost-effective to leverage technology.
In civil litigation, courts may impose fines and sanctions if an organization and its counsel can’t effectively manage and produce its data. This is because lawyers are bound by duty of competence.
Technology competence, it’s required
The duty of technology competence, spelled out in ABA Model Rules of Professional Conduct, Rule 1.1, Comment 8, extends the ethical obligation on every litigator to provide competent representation to a client to legal technology competence.
Comment 8 states:
” To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. “
This means that lawyers not only need to know the basics of how to use legal technology, including eDiscovery software, and the benefits and risks, but stay abreast of new advancements.
Critical eDiscovery software capabilities
Today’s eDiscovery software is constantly evolving to handle greater volumes of ESI and new communication tools and apps, including Slack, Google Chat, Microsoft Teams, social media and other cloud data, and other new and challenging sources of data.
Lawyers and their teams should understand not only the basics of eDiscovery software, including collections, processing, culling, review, analysis, redaction, and production. With new integration of AI, and particularly generative AI, into eDiscovery software, they should also seek to keep abreast of advanced tools, such as the following, to make their work more efficient:
TAR based on continuous active learning: Technology-assisted review based on the continuous active learning protocol (CAL) can simplify the review process by intelligently surfacing only the documents that are most likely to be relevant. Advanced CAL approaches such as RAPID Review accelerate review by up to 75% by eliminating the vast majority of eyes-on review, while providing total project transparency and defensibility.
Generative AI-powered review: eDiscovery software that leverages GenAI for review—when applied by certified experts–can help legal teams identify the most important content across thousands of documents at the start of a review, while substantially cutting review time.
Robust privilege and sensitive data identification and protection: Comprehensive proprietary privilege terms (with some tools offering 4,700+) and 500+ RegEx terms and patterns rapidly detect privilege and sensitive data for automated redaction, going beyond simple RegEx tools.
GenAI-powered privilege logging: Internal review accelerators, such as generative-AI powered RAPID PrivLog, leverage custom-tuned GenAI models to generate automated privilege log descriptions, improving insight into the content to validate privilege decisions. This can save review teams 40% in time and 25% in costs compared to typical privilege log processes, while increasing consistency and accuracy in descriptions across privileged documents.
Witness and depo prep: Sophisticated eDiscovery software functionality help review teams start building depo prep materials, from fact chronologies and witness keys to key document summaries, from day one. Final witness kits delivered at the end of the eDiscovery phase accelerate prep.
Data reuse across matters: Advanced eDiscovery software includes automation built on historical work product, regardless of data origination, to reduce discovery hosting costs and improve speed and accuracy. eDiscovery software with data reuse capabilities automatically identifying previous decisions for future matters based on pattern-attribution technology that generates scores by leveraging historic decisions regarding relevance, privilege, issues, and other work product.
Digital first drafts: There are also AI-forward tools that aid in the creation of digital first draft responses to pleadings and discovery demands, delivering speed to first drafts at substantial cost-savings compared to junior lawyer time and effort.
These advanced eDiscovery software tools should not be left on the table when seeking to optimize efficiency and budget.
The human element
It is essential to highlight the synergy between technology and human expertise—especially as lawyers navigate new eDiscovery software tools that integrate AI, and generative AI specifically, into key steps of the process to achieve efficiency gains and cost-savings.
But it’s not realistic for even the most tech-savvy lawyers to be experts in technology, data science, machine learning, and generative AI, to name a few, when advising clients.
Rather than chasing the duty of competency, lawyers can meet their duty of competency by partnering with outside experts that have core competencies in these areas—so they can focus on strategic legal work and advice.
Advanced eDiscovery software is a strategic imperative
From efficiency gains to heightened accuracy, cost-effectiveness, adaptability, and compliance assurance, the benefits of eDiscovery software are substantial. As the legal landscape continues to evolve, embracing advanced tools is not just a choice but a strategic imperative for attorneys committed to delivering exceptional and efficient legal services.
We can support your eDiscovery efforts with expertise and technology-enabled services. Contact us.