E-discovery and Legal Processes

When a company has a much stronger handle on the status of each legal hold, the less effort and less financial strain it will be on the company in case of a litigation.

Data must be protected during e-discovery just as it does when it is a part of any other business activity.

The degree of security risk depends on the nature of the data. Standard business contracts might not be highly sensitive and thus create minimal risk, but exposure of intellectual property that represents the crown jewels of a company could be a major risk.

 Data that attackers go after most often, such as credit card and bank account information, is not frequently subject to e-discovery requests, but other types of highly sensitive data such as executive communications, strategic projections and financial performance data are often found in litigation.

Unfortunately, the business people who are in the best position to understand the risk value of the data are not those who are responsible for ensuring its protection during the discovery process. This function is carried out by the IT department or by the legal department. And so it is important for internal stakeholders to communicate effectively. Companies need to focus on protecting their most important and valuable data. Not everyone in a company will agree on what that is, but it’s essential to have this conversation.

Some companies have been using manual methods for legal holds until just a few years ago. Legal holds are required when a company might reasonably expect litigation and therefore should not delete information that might be relevant to the litigation.

Managing legal hold helps minimize the risk of financial and other court sanctions for failing to preserve data. Data is scattered throughout companies and has become progressively more difficult to manage. Companies are dealing with big data, data in shared repositories such as, data on mobile devices, and so on.

People tend to keep everything. When legal hold is used effectively, companies can meet their preservation duties, then do targeted collections as needed in the case. Good hold process plus targeted collections can significantly reduce the amount of information that must be reviewed by attorneys, which accounts for 70% of e-discovery costs. It is important it to check the information of terminated employees to see if it might be subject to hold.

Another value proposition in using an automated legal hold solution that is integrated with collections and first-pass review is the ability to re-purpose a collection. The same collection and review tagging could be used again by adding only the incremental data generated since the original one.

Several trends are contributing to strong growth in the e-discovery market, including the ever increasing amount of litigation, greater volumes of data and a move toward adding in-house e-discovery capabilities. Each product has particular strengths, and that wide array offers options that can be used very selectively or in conjunction with each other to meet a company’s goals.

In addition to a group of large e-discovery vendors, many smaller vendors have products that are working well for their customers.

Once a set of documents is located that may be responsive to the e-discovery request, it needs to be searched. The effective use of human skills in conjunction with computer capabilities is a key ingredient in winnowing down the volume of data that needs to be reviewed by attorneys or other legal professionals. Technology-assisted review (TAR), also called predictive coding, is a method for training a computer to spot documents that may be relevant and distinguish them from those that are not.

One of the tools to consider is Catalyst Insight.

Catalyst Insight is a secure cloud-based platform where clients can search, review, mark and produce documents. It can be augmented with Insight Predict, a predictive ranking TAR 2.0 solution that uses continuous active learning (CAL) to speed the review process by allowing technology to work alongside the judgments that human reviewers make. The solution brings the most relevant documents to the top of the list rather than working in a linear fashion.

The company’s TAR 2.0 software is specially designed for e-discovery. With TAR 2.0, attorneys and legal professionals who are subject matter experts do the initial coding for relevancy. Each of their judgments about the relevancy of a document is fed back to the system as a means of "training" to identify others that also might be relevant.

TAR 2.0 allows new coding to be immediately incorporated into the algorithm for searching the document repository so that it is correctly tuned to the current problem domain.

As a cloud product, Legal Hold Pro is quick and easy to launch, and is updated frequently. There is no burden on the IT staff for software maintenance.

In general, cloud providers understand that a data breach poses an existential threat to their business. If they lose a client’s information, especially in a sensitive context such as financial or legal activities, the reputation damage can be severe.

The well established companies understand this. Nevertheless, it is important to discuss with the provider what measures they are taking to protect your sensitive data. There has been quite a bit of fear about the cloud, but for the most part, data can be as safe in the cloud environment as it would be within the organization so long as best practices around access controls and other security measures are employed.

In the future, more sophisticated technology will allow such actions as the reuse of attorney judgments, checking for outliers and monitoring the repository for problems in advance This kind of proactive strategy will help companies reduce their risk exposure and speed up e-discovery.

Categories: E-Discovery
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