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5 Bad e-Discovery Habits That Could Be Hurting Your Case

Carlo Ramos

Editor's Note: Originally published in March 2016, this post highlights some bad habits that still plague many legal teams. We wanted to share it again to help teams start their 2019 e-discovery strategy planning with a tactical list of not-so-best practices to examine and overcome.

e-Discovery is a rapidly evolving industry, with advancements in technology changing the way legal teams approach almost everything they do. Over the past decade, we’ve seen big strides in how customers tackle e-discovery, from performing more targeted collections to using analytics and technology-assisted review in more cases. 

However, old habits die hard, even in this industry. As members of Relativity's customer success team, we continually hear customers engaging in a few consistent habits that just don’t work so well in today’s landscape. Check out these examplesand how to think outside the box to break them.

1. Agreeing to Search Techniques without Doing Your Research

The meet and confer is your opportunity to discuss and negotiate search techniques with opposing counsel and gain a better understanding of the data volumes in play. But to be effective in this meeting, you first need to understand the review platform your team uses and how your client’s data will play with it.

You don’t need to become a technology expert overnight, but you should at bare minimum be able to answer the following questions going into the meet and confer:

  • What software applications (Outlook, Lotus Notes, QuickBooks, etc.) does your client use?
  • What is the client’s data retention policy? This will be particularly useful when it comes time to negotiate relevant search dates.
  • What are the preferred file formats for your team’s review tool?

Additionally, prior to coming to any agreement, you should always sample the search terms being negotiated to ensure the number of documents returned is manageable and to help your team set expectations and conduct an efficient review.

Break the habit: Though having technical acumen yourself is important, you can always play it safe by bringing your IT or lit support specialist—what Judge Andrew Peck would call your “geek”—to the meet and confer conference.

2. Making Decisions in a Vacuum

Picture it: You’ve come out of a productive meet and confer discussion (thanks in part to your research prior to the meeting), and you’re ready to start talking deadlines with the court and your client. Who do you chat with first?

If you answered your litigation support and IT staff, you nailed it. Setting realistic timetables with your internal team before anyone else will allow for the proper assignment of resources and give you ample time to prepare. Far too often, however, we see situations where attorneys have made calls on deadlines without syncing up with their team—which can lead to missed commitments down the line.

Break the habit: Making these joint decisions is sometimes easier said than done. To help, try creating an action log from the very onset of the case. The action log serves as a single point of reference for all decisions that were made or will need to be made by the legal team and the litigation support team.

3. Working with Paper

The legal industry has been notoriously slow to make the shift to a completely digital world—despite all the real-world horrors stories that working with paper can yield. First, there’s the additional cost of the paper, printers, and toner—and don’t forget the expense of shipping banker’s boxes.

Moreover, many law firms enforce storage polices, requiring teams to keep working files in an off-site, temperature-controlled environment—in other words, an expensive storage room. Though these firms should shred the paper once the case ends, it’s not uncommon to forget to do so—especially in the event of turnover, where the person responsible no longer works for the firm by the time the case ends. I can vouch first-hand that this happens and did happen in a case team on which I previously worked.

Perhaps more important than the cost, however, is the risk of clicking print without an afterthought—especially when there is personally identifiable information (PII) on the page.

With mobile devices becoming ubiquitous, however, more attorneys are beginning to work with and review their case documents on mobile and more should follow suit.

Break the habit: Tools like Relativity, as well as Adobe Acrobat and Microsoft applications, are all mobile-friendly (and much more secure) alternatives to printing.

4. Failing to Unitize (When Paper Is Part of the Picture)

You won’t always be able to get around the paper problem. Sometimes important case documents such as real estate documents, medical records, invoices, or even hand-written meeting notes originate as paper and need to be scanned and processed into your review platform. Surprisingly, this seemingly simple task causes a common problem that we hear about time and again: the legal team scans the paper into their review platform, but fails to include logical document breaks.

As a result, reviewers will find pages scanned out of order or multiple documents scanned as one large document. And from what we hear from customers, the issue almost always goes unnoticed until crunch time, adding more stress to an already stressful work day for your team.

Break the habit: When you ask your clerk or paralegal to scan documents, request they unitize the documents prior to scanning. Alternatively, several vendors offer this service at a per-page cost—which could save you money compared to the hourly cost of a legal staff person. 

5. Requesting TIFFs by Default

Over the years, it’s become common practice for legal teams to convert all documents to TIFF format under the misnomer that imaging everything will speed up the document review.

It’s true TIFFing documents used to be faster than reviewing them in native format, as waiting for each program—such as Word, Excel, or Adobe—to open can be time consuming. But that’s not the way of native review anymore, as today, most document review platforms include extracted text and native viewers.

Break the habit: You may to still need to TIFF documents with redactions, or if TIFF images are the agreed upon production format. But requesting your team to TIFF everything at the onset of a project isn’t necessary anymore, so weigh your options before coming to a decision.

What bad e-discovery habits are you trying to break? Share them in the comments.

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