Thoroughly gather all the facts
The ultimate aim of this process is to minimize the number
of documents handed over to legal advisors. However, a vital
first step is to start with all the facts of the case, gathered
from all available custodians and data sources. This requires a
rigorous investigative workflow.
• Interview the first key players that come to light and
ask them to identify any documents and data sources
that might be relevant to the case.
• Notify these custodians, and anyone else who
manages that content, of their duty to preserve
evidence, and retain a record that they have received
and acknowledged this notification. If such a facility
exists, place all the relevant content under legal hold to
prevent automated or inadvertent deletion.
• Map the data sources identified and gain a high-level
understanding of their content.
• Perform targeted data collection, focusing on the relevant
data sources, custodians, dates and document types.
• Fully index all collected data and analyze it using
search, clustering and visualization to examine the
relationships between custodians and evidence.
• If this analysis identifies information gaps or other people
who may have been involved, repeat the fact-gathering
process with these new custodians or lines of enquiry.
• Once an organization is satisfied it has all the relevant
information, use techniques such as deduplication
and predictive coding to cull the data down to a small
number of critical documents, and pass these on to its
legal advisors to begin setting strategy.
Being extremely thorough at this stage can unearth the
custodians, documents and facts that traditional approaches
would miss, and avoid nasty surprises further down the track.
For example, foreign-language documents often remain
hidden in data sets until very late in the production process.
At this point, an organization must pay large amounts of
money for expedited translation services. By identifying
foreign-language documents at the start of the process,
the legal team can take a more strategic approach, such as
finding staff members who speak the relevant languages.
I have seen this save hundreds of thousands of dollars in
translation costs.
Speed is also essential. At every stage of the process,
organizations must avoid bottlenecks such as technologies
that cannot quickly map, collect and analyze data.
Leverage superior knowledge to settle...
An organization can make an informed decision about the
lawsuit by identifying relevant custodians, data sources and
then culling down to the most relevant documents.
Knowing more than the opposition allows an organization
to set a settlement strategy that works to its advantage. This
in turn avoids the costs and business disruption of litigation,
the wrong kind of publicity and the potential disclosure of
sensitive information.
... or maintain an advantage throughout litigation
It may not be possible to avoid litigation if the opposing
side believes it has a strong case. Having rapid access to the
full corpus of evidence—and powerful investigative search
capabilities—can help a litigant maintain a strategic lead
over the opposition through multiple rounds of depositions
and discovery,
Having already indexed and investigated all the evidence
sources will confer ongoing advantages. As witnesses or
documents emerge, the legal team can quickly search and
analyze the case evidence. If new evidence sources come
to light, these can be added to the corpus, indexed and
analyzed quickly.
2 Nicholas M. Pace, Laura Zakaras, “Where the Money Goes:
understanding litigant expenditures for producing electronic
discovery”, 2012, http:// www.rand.org/content/dam/rand/
pubs/monographs/2012/RAND_MG1208.pdf
3 Thomas I. Barnett, Svetlana Godjevac, “Faster, Better, Cheaper
Legal Document Review, Pipe Dream or Reality?”, June 2011,
http:// www.umiacs.umd.edu/~oard/desi4/proceedings.pdf
