by Maureen Holland - D4 on May 20, 2016
This post was originally published on D4's Discover More blog. It explains how and why case teams should perform data analysis at the beginning of even the smallest e-discovery projects.
Data analysis is one of those litigation support terms that mean different things to different people. Regardless of what you call it, data analysis is a strategic workflow that allows legal teams to assess electronically stored information (ESI) to make the document review more cost-effective. It should be done early in the e-discovery process and it should be done regardless of the size of the case. Here’s why: As discovery costs continue to increase, legal teams must manage the cost by analyzing the ESI prior to any processing or review.
What is Data Analysis?
As it relates to e-discovery, data analysis is best described as a preliminary and high-level data assessment that answers important questions about ESI. Case teams can use data analysis workflows to quickly identify options for preparing and working with ESI and to address potential challenges that could have far reaching repercussions if not resolved early enough in the discovery process.
Data Analysis Is Not…
- Meant to replace in-depth custodian interviews and questionnaires
- Meant to replace agreed-upon preservation or collection protocols
- Meant to replace case team due diligence when identifying ESI
- Meant to complete or be interchangeable with ECA, attorneys' early case assessment of litigation risks
- A “one-size-fits-all” analysis of ESI
- When e-discovery starts
Why Is Data Analysis Important?
In our experience, legal teams often ignore or avoid any data analysis. Too often, they rush into processing and review without a significant understanding of the content of their ESI. This avoidance is a disservice to clients and staff. Data analysis is an activity that yields significant cost savings to the client. With good tracking and reporting, the return on investment (ROI) can be proven in every case.
We see legal team spending on discovery increase unnecessarily when issues with ESI are uncovered too late in the e-discovery process, requiring work to become reactive instead of proactive. While remediating these issues, we find almost uniformly that time and expense of remediation could have been avoided had data analysis been performed on ESI at the beginning of the project. We find this holds true even in the smallest e-discovery matters.
Courts and state bar rules both require attorneys to be competent when managing e-discovery. Knowledgeable clients are demanding it of their outside counsel. Insurance companies who cover litigation costs closely scrutinize the plans for data analysis and reduction before they approve e-discovery expenses.
Data Analysis Answers Ten Key Questions
- What is the total volume of ESI?
- What kinds of files are included in the ESI?
- Are the sources and types of ESI what the legal team expected?
- Are the source and type of the data consistent with client or agreed-upon ESI preservation, collection, and production protocols?
- Are there any types of ESI that will negatively affect processing, review, or formatting of the ESI later in the e-discovery process?
- Are there any non-standard data types such as internet files, mobile device data, or MAC data that need to be handled in an alternative workflow?
- Is the ESI consistent with the legal team and client’s expectations for scope and budget?
- Is the ESI consistent with the anticipated production workflows, milestones, and deadlines?
- Are there types of files that without question should be excluded from e-discovery processing?
- Are there sources of ESI that should be phased into or even excluded from e-discovery processing?
We know that clients and legal teams are often pressed for time in making decisions about e-discovery and review technologies. Gone are the days of sending ESI through the discovery process without looking at it first. There is no good excuse based on time, expense, or limits to technology for NOT analyzing data after collection. There are many cost-effective solutions available to case teams to perform a valuable data analysis. Even those with small projects or with limited technology budgets have data analysis strategies available to them.
Initial data analysis should be performed in every case. There is no reason whatsoever for attorneys to not incorporate some form of data analysis into their everyday e-discovery workflows. If data analysis continues to be ignored, attorneys could lose their competitive and tactical advantages throughout discovery. As courts, clients, and the legal profession itself demand competence from counsel, the initial data analysis provides counsel with the knowledge needed to succeed with e-discovery.
Maureen Holland is a senior consultant for D4. She has more than 17 years of consultative and hands-on litigation support and legal technology experience.