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Leaders in Legal Business
Collection
In the collection phase, all potentially responsive ESI from custodians and other client data sources are
gathered. The failure to collect the data early can drive up the expense of discovery.
Data can come from a variety of sources, including but not limited to servers, individual computers, cloud
storage, mobile devices, backup tapes, personal computers and devices, and social media. Tools are available to
help manage the headaches associated with mobile data: For example, mobile device management software can
help secure, monitor, and support company- or employee-owned mobile devices. Any technique or tool used to
collect the data must be forensically sound to ensure the integrity of the data. Counsel should also ensure that the
client has clear records demonstrating the chain of custody for collected information, including where the data
originated, who handled it, what steps were taken to collect it and when, what tools were used, and where the data
went after collection. If the data is not reasonably accessible, it may be appropriate to negotiate with the requesting
party or seek relief from the court.
Meeting collection requirements often requires the expertise of a reputable discovery provider; relying on
self-collection risks the omission of key data, the inadvertent loss or modification of metadata, or a claim of self-
interest by the opposing party.
Processing
The processing stage converts collected data to a form that can be systematically analyzed and reviewed
in a software platform. During this phase, an e-discovery provider can employ strategies to reduce the volume of
data such as removing duplicate documents (a process called “deduplication”), system files, and other irrelevant
noise from the collection, ultimately lowering the cost of the priciest stage of discovery: review.
Review
During this stage, the client’s data is reviewed and coded for responsiveness and privilege to prepare it
for production. Studies have shown that review is the most expensive phase of the process, with some researchers
maintaining that it accounts for up to 73 percent of discovery budgets.4
Clients have panoply of options at their disposal for reviewing data. Traditionally clients have relied on
manual (or linear) review, wherein an army of lawyers pores over each document. Today many organizations
employ tools to sort the data electronically using search terms to isolate potentially relevant data, which then is
sent to reviewers for responsiveness and privilege review and coding. Other analytic techniques, such as e-mail
threading, can eliminate the need to review multiple chains of the same e-mail. Advanced technology-assisted
review solutions, including predictive coding, can speed the process of review by applying computer logic to the
data population, enhancing and in some cases replacing the first levels of human review. A knowledgeable
discovery provider can discuss the best options for the particular matter based on scope, cost, and the nature of
the data.
Analysis
The analysis of information plays an essential role in the early assessment of cases. Evaluating ESI for
content and context can highlight critical fact patterns such as timelines, revisions to documents, and the roles of
various players in the litigation. Data analysis can also help determine potential exposure that can drive decisions
such as whether it makes economic sense to settle early or proceed to trial.
4 Nicholas M. Pace & Laura Zakaras, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery, 41-42 (2012),
http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf.
77
Collection
In the collection phase, all potentially responsive ESI from custodians and other client data sources are
gathered. The failure to collect the data early can drive up the expense of discovery.
Data can come from a variety of sources, including but not limited to servers, individual computers, cloud
storage, mobile devices, backup tapes, personal computers and devices, and social media. Tools are available to
help manage the headaches associated with mobile data: For example, mobile device management software can
help secure, monitor, and support company- or employee-owned mobile devices. Any technique or tool used to
collect the data must be forensically sound to ensure the integrity of the data. Counsel should also ensure that the
client has clear records demonstrating the chain of custody for collected information, including where the data
originated, who handled it, what steps were taken to collect it and when, what tools were used, and where the data
went after collection. If the data is not reasonably accessible, it may be appropriate to negotiate with the requesting
party or seek relief from the court.
Meeting collection requirements often requires the expertise of a reputable discovery provider; relying on
self-collection risks the omission of key data, the inadvertent loss or modification of metadata, or a claim of self-
interest by the opposing party.
Processing
The processing stage converts collected data to a form that can be systematically analyzed and reviewed
in a software platform. During this phase, an e-discovery provider can employ strategies to reduce the volume of
data such as removing duplicate documents (a process called “deduplication”), system files, and other irrelevant
noise from the collection, ultimately lowering the cost of the priciest stage of discovery: review.
Review
During this stage, the client’s data is reviewed and coded for responsiveness and privilege to prepare it
for production. Studies have shown that review is the most expensive phase of the process, with some researchers
maintaining that it accounts for up to 73 percent of discovery budgets.4
Clients have panoply of options at their disposal for reviewing data. Traditionally clients have relied on
manual (or linear) review, wherein an army of lawyers pores over each document. Today many organizations
employ tools to sort the data electronically using search terms to isolate potentially relevant data, which then is
sent to reviewers for responsiveness and privilege review and coding. Other analytic techniques, such as e-mail
threading, can eliminate the need to review multiple chains of the same e-mail. Advanced technology-assisted
review solutions, including predictive coding, can speed the process of review by applying computer logic to the
data population, enhancing and in some cases replacing the first levels of human review. A knowledgeable
discovery provider can discuss the best options for the particular matter based on scope, cost, and the nature of
the data.
Analysis
The analysis of information plays an essential role in the early assessment of cases. Evaluating ESI for
content and context can highlight critical fact patterns such as timelines, revisions to documents, and the roles of
various players in the litigation. Data analysis can also help determine potential exposure that can drive decisions
such as whether it makes economic sense to settle early or proceed to trial.
4 Nicholas M. Pace & Laura Zakaras, Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery, 41-42 (2012),
http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf.
77
