“E-Discovery Best Practices for IT” Webinar Highlights

Jason Pickens

IT teams are the unsung heroes of litigation, spending many hours searching for relevant electronically stored information (ESI), helping the legal team “herd cats” to ensure that custodians respond to litigation holds, and preparing massive files for both review and production phases. Having spent time with many legal and IT teams across North America and Canada, I’ve compiled a few best practices after some discussion with my recent webinar co-presenter and former colleague, Carl Wong, who’s an adjunct professor in forensic computing at the John Jay College of Criminal Justice.

#1 – Bring Preservation and Collection In-House

Lowering costs relative to both software and a streamlined collection process are big benefits, but not the only ones. No one understands your IT landscape better than you do, and it makes sense for you to be the drivers of a repeatable and defensible process that’s part of a total response plan. Bringing the oversight of the process in-house doesn’t mean your team has to do all the work, but rather that you should have control over the process for greater efficiency and lower risk.

See for Yourself: EnCase® eDiscovery v5 is Out

Bryant Bell

EnCase® eDiscovery v5 marks the advent of significant new capabilities – breakthroughs, even – for in-house counsel, government agencies, and law firms who need to get e-discovery done right. No more outsourced black boxes. For the first time, litigation specialists and their legal teams can have complete oversight of the entire e-discovery process, from a greatly automated legal hold phase through early and continuous case analysis all the way through to production.

EnCase a Leader in Early Case Assessment

Guidance Software

Industry analyst firm IDC has named Guidance Software a leader in early case assessment (ECA) in a new report, the "IDC MarketScape: Worldwide Standalone Early Case Assessment Applications 2011 Vendor Analysis."

The report is IDC's first in-depth analysis of early case assessment applications, a fast-growing segment of the electronic discovery (e-discovery) market. IDC expects revenue for the standalone ECA applications market will total $400.8 million in 2011 and will reach $857.0 million in 2015.¹

The need for early case assessment tools has grown in recent years as costs associated with e-discovery have escalated. ECA applications can help organizations achieve substantial cost and time-savings by enabling legal teams to have the metrics and insights needed to make informed decisions about case merits, risks and expected costs at the outset of a legal event.

"The value of early case assessment rests in its ability to enable better, faster case strategy decisions," said Victor Limongelli, president and chief executive officer, Guidance Software. "With EnCase, organizations can do case assessment truly early — including before and during collection and preservation. This unique capability gives our customers a clear advantage with assessment before collection, compared to other solutions that need to first have collection and processing complete, which could take weeks."

The IDC MarketScape evaluated early case assessment application vendors; reviewing their current capabilities and individual long-term strategies that impact their ability to meet evolving requirements, execute their go-to-market and product strategies, and gain market share going forward. The IDC MarketScape document scored and ranked vendors based on qualitative and quantitative criteria.

Read the news release. Download a complimentary excerpt of the report.

Technology: Early Case Assessment – What You Don’t Know Can (and Likely Will) Hurt You

John Blumenschein Patrick Zeller, Deputy General Counsel and Vice President of eDiscovery at Guidance Software, has just written an article featured in this month’s issue of Inside Counsel entitled Technology: Early case assessment – What you don’t know can (and likely will) hurt you. In it, Patrick talks about the importance of taking proactive steps at the earliest stages of litigation in order to ensure that the ever-expanding universe of electronic data is manageable and under control. This process is commonly referred to as Early Case Assessment (ECA), and according to Patrick, “Effective ECA is the solution for this dilemma of needing to quickly assess and understand the vast and growing amount of data for litigation.”

Having the right technology in place is the key to achieving this goal; and Patrick points out several important considerations in selecting the right solution. For example, while many vendors claim to have the ability to achieve effective ECA, the reality is that the vast majority of them (with one notable exception) can assess the data only after it has been collected and/or indexed, or migrated to an enterprise content management (ECM) repository.

Why is this important? As Patrick notes, index-based solutions need to create a directory of the corporate network, and many e-discovery attorneys believe these indices are discoverable in litigation. If the index is discoverable, it could easily create a record of spoliation. To avoid this scenario, it is critical for organizations to have a solution that will instead “have the ability to search, analyze and review ESI content to understand a case’s merits, identify responsive documents and further cull the dataset prior to attorney review allowing those organizations to minimize risk and save money.”

You can read the full article here.

Discussion Brings to Light Common Misunderstandings of Early Data Assessment

John Blumenschein George I. Rudoy of Integrated Legal Technology, LLC and George Socha of Socha Consulting closed out Day 1 of the CEIC e-discovery Lecture Track with a frank and fascinating discussion on Early Data Assessment and Analytics. Their discussion focused on defining what Early Data Assessment is (as well as what it is NOT), how to go about doing it, and what tools can help lawyers achieve this often misunderstood and highly sought after goal in the electronic discovery process. George Socha is also the co-creator of the Electronic Discovery Reference Model, and the two men used this model throughout their discussion. George Rudoy characterized the word “early” as one of the biggest misnomers in the term Early Data Assessment — the key instead is to assess the data early and often, according to George Socha. The two pointed out that because so many lawyers fail to recognize how to achieve Early Data Assessment and Analytics, and with the volume growing of data out there, many lawyers simply get stuck in review, and never get to analysis or assessment. According to George Socha, many lawyers need to get past the notion that electronic discovery is a simple “check box” that they need to take care of before they can move onto “real lawyering”—it is critical that lawyers understand the amount of time and energy that needs to go into achieving a truly successful electronic discovery process, and understanding Early Data Assessment is the key to achieving that goal.

The Advantages of Early

Guidance Software There's a clear advantage in doing things early. For example, if you wake up early, you can beat rush-hour traffic. Starting a project early means you're less likely to be short on time to finish it. The same applies to electronic discovery. The earlier you can get your hands, and head, wrapped around your corpus of data, the better you can anticipate costs, allocate resources, prepare to negotiate with opposing counsel, make case-strategy decisions and minimize overall expenses.

But early case assessment (ECA), as this technique is called, wasn't always possible. In e-discovery's infancy, legal professionals were grateful just to have a roadmap that could describe the complex process needed to get from document collection to production. The EDRM provided a fairly linear path that discovery professionals could travel down to reliably and defensibly respond to discovery requests.

But as costs associated with e-discovery began to escalate, a new concern arose. No longer was the challenge merely to produce responsive, non-privileged documents from a collection of potentially millions of files; now the challenge was to produce responsive, non-privileged documents in the most cost-effective manner possible.

Because processing and reviewing documents equates to large increases in overall e-discovery costs, the obvious solution is to reduce the amount of information that needs to be processed and reviewed. However, this means that documents must be siphoned out during collection or, ideally, before collection. Just a couple years ago, such a notion would have seemed impossible. How could legal professionals derive usable insights without actually taking the time to collect, process and review the data?

Today, ECA presents a solution to this problem. ECA allows legal personnel and discovery professionals to reap insightful metrics from largely unsorted, unprocessed collections of data. With these insights, the legal team can identify key custodians and issue legal hold notices, develop keyword lists, test and perfect search criteria, identify relevant data sources and formulate a strong case strategy. Plus, by distinguishing percentages of potentially responsive data versus likely non-responsive data, professionals can surmise overall costs before embarking on a potentially expensive discovery process.

The most effective ECA solutions allow professionals to deploy pre-collection analytics to get data insights as early in the discovery process as possible, even before collection takes place. In addition, these solutions should allow analysis and first-past review to take place at any point in the EDRM, which helps to cull down data sets and reduce outside review costs. By combining these two functions—pre-collection analytics and flexible analysis and first-pass review—legal professionals can expedite the discovery process and greatly reduce overall e-discovery costs.

Learn more about how you can harness the power of ECA with EnCase® eDiscovery (PDF).

Learn more about EnCase® eDiscovery.