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Technology use in e-discovery isn't a new topic. That's the problem—sometimes experience can make us resistant to new ways of doing things because we already know how to get from start to finish with search terms and linear document review. As technology continues to evolve and collective knowledge about its application in e-discovery expands, this could mean missing out on cost- and time-saving uses available in technology we already know.

Consider cultivating a beginner's mindset to challenge assumptions about technology and its use. Then, apply this mindset to how you select and use technology in e-discovery. Employing a beginner's mindset doesn't mean casting aside existing knowledge and experience, but it does mean questioning assumptions developed over time about what technology can do and getting curious about what else technology can offer in your matters. That could lead to using analytics to get to existing key content quickly, rather than hoping your search terms locate the key documents fast enough.

In a recent webinar, Janelle Belling, Rike Connelly, Jamie Viviano and Chad Jones offered impactful suggestions on leveraging technology for a successful e-discovery strategy. With ideas on cultivating a beginner's mindset threaded throughout, consider whether the following suggestions could create new possibilities for your matters in the new year:

Communicate early and often about the intent and manner of technology use: Include the court and opposing parties in these discussions as cooperation and agreement promote a more efficient process. Incorporate practical considerations, such as timing and cost, and legal considerations, such as risk and strategy, into technology selection. How do you apply a beginner's mindset to this? Consider these issues:

Are there areas in which your technology use and communications about that technology seem consistently challenging? What contributes to those challenges? What could be done differently next time? Are different skills or people needed in these conversations?

How is technology typically selected? Are there parts of the selection process that could be better or different? Who could help improve that process?

Employ technology in pre-review analysis to help identify key issues: Technology has the potential to impact everything from litigation holds to discovery plan negotiation. Before review begins, consider how attorneys and technology professionals can work together to employ the right technology to target potentially relevant documents for review and use analytics to identify data trends and key issues, facts, and people. Applying beginner's curiosity about pre-review analysis could include these questions:

How are key issues and documents identified in the pre-review phase? Are there additional tools that may help unearth key issues faster? What additional knowledge is needed to employ these tools?

How are colleagues across the industry identifying key issues and documents? What must be learned to grow the knowledge and experience to use those workflows as well?

Do not be afraid to use technology: When used to its full potential as part of a discovery plan, technology often renders better and more consistent results than manual review in a more cost-effective manner. Ask whether there are technologies avoided in the past because they were less known and, therefore, more daunting. Could those be worth delving into now? Query these additional items:

Are there areas in past matters where technology could have done more than it did? What were those areas? Are there features in the technology available that do this? Does technology not used before offer these?

What is preventing use of new technology? How could resource or knowledge gaps be bridged?

Remember that credibility and defensibility are key to technology use: To gain credibility, partner with experienced technology professionals and use vetted technology. Defensibility includes explaining how technology works and why results are trustworthy, as well as using technology appropriately. Bringing attorneys and technology professionals together throughout the discovery process to discuss technology use and implications contributes directly to efficient discovery. Ask the following:

Are there types of technology, or applications of it, where further knowledge would help build credibility?

What knowledge must be represented on the team? Are there areas of strength we must add to the team, either through knowledge acquisition or adding new team members?

Happy new year, beginners!

 

Helen Stocklin-Enright is the development manager for Perkins Coie's E-Discovery Services & Strategy practice. She manages implementation of technology and operational initiatives within ESS, focusing on the strategic application of technology to conserve costs and enhance efficiencies. Thank you to Janelle Belling and Jamie Viviano for their contributions to this article.