How analytics tools can help agencies sharpen e-discovery
- By Phil Favro
- Jan 15, 2015
It is axiomatic that the United States government comply with the Federal Rules of Civil Procedure (Rules) like any other litigant. The Rules, which govern the procedures of all civil actions brought in the Federal District Courts, have been in effect since 1938.
Nevertheless, the task of satisfying the Rules’ discovery provisions has lately become increasingly difficult. In a recent survey of federal legal professionals, far fewer respondents than in previous years felt confident that agencies could show that their electronically stored information (ESI) is “accurate, accessible, complete and trustworthy.”
Such a conclusion is not altogether shocking given the challenges to the discovery process from the sheer growth of information and locations where relevant, responsive data could be found.
Another key factor is that most respondents – 75 percent – did not feel they had “adequate technical support when dealing with opposing counsel.” The survey indicated this may be caused in part by underdeveloped internal processes, which “remained the top challenge respondents had with handling, processing, reviewing or producing ESI in compliance with the Federal Rules of Civil Procedure,” according to the survey.
Without the right supporting technology and processes, any organization would find it difficult to conduct discovery in the manner expected under the Rules.
Furthermore, those expectations will probably be heightened in the coming years as new Rule changes come into play.
While there are no easy solutions to these problems, there are steps that agencies can take to help address the issues. One is to implement advanced ESI collection, search and review technologies, including cutting-edge innovations such as predictive coding technologies and visualization tools.
Predictive coding technologies
Predictive coding – a computerized process for selecting and ranking a collection of documents – uses machine learning to rapidly pinpoint more relevant ESI than would be possible for human reviewers. All parties to the litigation process – especially the courts – have generally been drawn to predictive coding given its potential to expedite the ESI search and review process.
Predictive coding can also be used to identify key documents required to establish claims or defenses. These byproducts of predictive coding – simplifying the process and identifying strategic information – make it a particularly attractive option for conducting discovery in 2015.
Like predictive coding, visualization tools are also being adopted with greater frequency. This is because visualization technologies provide companies with a better understanding of the nature of their relevant information.
Using analytics and machine learning, these tools allow for enhanced detection of trends, relationships and patterns within the universe of that information. Review teams can more easily locate privileged materials, for example, since they visually identify the employees with whom counsel has communicated.
Other discovery technologies
Agencies would also be well served to better understand traditional e-discovery technology tools such as keyword search, concept search, email threading and data clustering. Today there is significant confusion in particular regarding the continued viability of keyword searches given some prominent court opinions frowning on so-called blind keyword searches.
However, most e-discovery jurisprudence confirms the effectiveness of keyword searches so far as they involve a combination of testing, sampling and iterative feedback.
Updating e-discovery processes
An additional step agencies should consider is making sure their e-discovery processes are effective. This means having an iterative workflow that involves a skilled review team, quality checks to better ensure review accuracy and technologies that can support review goals. With the proper use of advanced analytics tools, workflows can often be streamlined to eliminate the multiple review passes that generally characterize manual reviews.
It has become essential that agencies deploy the right tools to better comply with both the existing and expected Rule requirements. Coupling these tools with an effective workflow will better establish the defensibility of an agency’s overall discovery process. That defense is crucial to the increasing confidence that government lawyers must possess to effectively litigate e-discovery issues.
Phil Favro is senior discovery counsel at Recommind.