COVID-19 Heightened the Need for eDiscovery Tools. Here’s Why They’re Here to Stay.
Christopher Lim
eDiscovery tools that made legal document review easier during quarantine have staying power—and can help maintain a single source of truth with legal documents.
Another new normal coming out of the pandemic? The use of eDiscovery. Widespread workplace closures accelerated the need to use digital tools for legal document review—and maintain a single source of truth. Now, with attorneys and their clients accustomed to new ways of working and a shift to hybrid work models, there’s no turning back. Christopher Lim discussed how legal professionals can navigate this new eDiscovery landscape and seize opportunities the technology offers.
Q: Let’s set the stage: How did COVID-19 accelerate the adoption of eDiscovery tools?
Just because people couldn’t go into their offices didn’t stop lawyers from needing to review documents for their cases, and that created real challenges. For confidentiality and security reasons, some attorneys couldn’t take documents home. Others had issues sharing documents and keeping them organized without a central physical repository. They had to find a way forward. And that meant quickly adapting to eDiscovery.
The pandemic might be fading, and many employers appear to be moving toward a hybrid work model, but the increased use of eDiscovery will continue. Lawyers will have to work hard to ensure that there’s a single source of truth when it comes to their legal documents.
Q: For many attorneys, eDiscovery is a new tool—and during the pandemic, they had to adopt it pretty quickly. What are the main roadblocks in integrating eDiscovery effectively into attorneys’ processes?
There are really three main obstacles: complexity, cost and the fact that, for many—especially among experienced attorneys—eDiscovery is a disruptive technology to their tried-and-true work procedures. It can be as simple as “I still need to feel the paper” or being accustomed to having the documents in the room and having a particular process to sort through them. Or they might be waiting for the big players to adopt it first and prove its effectiveness.
On the one hand, the pandemic made these issues somewhat irrelevant; lawyers in many cases had to use eDiscovery tools to get their work done. But the rapid pace at which they had to adopt it also meant that the implementation often was rushed and that they may not have gotten as much out of it as they could have.
Q: How do you alleviate these concerns?
With the facts. For instance, eDiscovery can be customized to be as simple and efficient as possible. Or it can do a lot more. The complexity totally depends on what they need. If a lawyer really just wants the technology to host documents, eDiscovery can help them. If they want to be more capable in their usage of analytics, eDiscovery can do that too.
As for costs, using eDiscovery actually reduces nonbillable hours and allows attorneys to focus on important matters. Rather than working with secretaries or interns or associates to source and organize documents—and racking up nonbillable hours—they can have it ready to review on eDiscovery platforms. They can concentrate on high-level and productive legal work, not back-office tasks.
For example, a client that worked with us during the pandemic had 45 boxes of documents. When COVID-19 hit, the client had three copies of the documents: one each at the client’s home, at the client’s office and for the client’s lawyers. Over time, the quality and organization of these papers had declined. One party would not be able to find a document and would have to go to another party’s house and scan, print and return it. It became a real scramble. With eDiscovery, they digitized one set of boxes, and if the client finds or wants to add an extra file, they can just upload it. Everyone can access it, and it has allowed for collaboration online during the pandemic. Plus, the client doesn’t have to fill up an entire room (or house) with 45 boxes.
Q: Legal issues arise with eDiscovery too. What do you see as key issues, and how do you address them?
Data privacy is one of the legal concerns with eDiscovery—especially when it’s an international case with different regulatory regimes in play. If a client does not know specifically how the data is stored in the cloud on a specific location, this can raise concerns. As such, the provider needs to understand not only the usage of eDiscovery but also the manner in which the data is being hosted so that it does not violate data-privacy issues. The right understanding and knowledge of setting up eDiscovery for a matter would allow access to the data through the cloud and, at the same time, adhere to data-privacy rules and restrictions.
Q: What about artificial intelligence in eDiscovery? How is it being used? What are its benefits?
AI can be helpful to lawyers using eDiscovery, whether for prioritizing documents to review (e.g., with keyword searches), helping make decisions around what should and should not be disclosed or minimizing the need to engage various providers (e.g., for translation, transcribing, production and processing of documents).
One key point to remember, though, is that that usage of AI in eDiscovery is to support the lawyers, but never to replace their work. Lawyers still have to do a final review and act as the final line of defense for any document that goes out. They still need to see it and ensure it’s right, even if it’s been run through AI.
Q: What are the top three things attorneys should know about using eDiscovery successfully?
First, it provides you access to analytics and other features that will enhance your document review and make it more efficient. Second, it can allow you to uncover anomalies or trends that would not have been possible to find via manual review. And third, the amount of data on your matters will only grow larger and exponentially, and the best way to keep up is by utilizing eDiscovery to review it.
This shouldn’t come across as scary. eDiscovery can always be adopted with simple solutions at first (like searching and tagging of documents). As lawyers grow more familiar, they can move on to using analytics and applying AI to enhance their review processes.