EDiscovery

E-discovery is not the place cheap out, according to the  “E-discovery in the Cloud: From Office 365 to Social Media” panel that took place on Thursday at the ABA Tech Show.

While there are a variety of new tools on the market to help smaller firms take on the e-discovery process without incurring the costs associated with outside specialists, the results are still dependent on having the right person behind the wheel.

 “It's difficult to negotiate 'I want to go back and give you what I should have given you the first time'” said panelist Hampton Coley, director of practice technology and discovery services for Canon Discovery Services.

The panel focused specifically on Microsoft's Office 365, which offers advanced discovery tools that include email threading, near duplicate and theme detection and technology assisted review (TAR), among others.

TAR was one example of where small firms may have to consider whether having an advanced tool is still useful in the absence of adequate manpower to review the results. The answer could change from client-to-client and case-to-case.

“That's another good question to ask someone: How much is a case worth?” Coley said.

He pointed out that the usefulness of any collection tool is entirely dependent on the defensibility of the way that data is collected, culled and produced. The problem is that there are a number of areas that could potentially trip up even the most well-intentioned practitioner along the way.

Metadata, for example, is non-standard and can take a variety of different forms. “There can be hundreds, hundreds of metadata fields and attorneys typically only want to understand five or ten,” Coley said.

He also touched on the ephemeral nature of social media data where something can exist one minute and be gone the next — unless it finds second life as a screenshot somewhere. Per Coley, screenshots have proven to be admissible in court and might be a e-discovery practitioner's only recourse if the original post or data has been deleted from a platform.

Given all of these complications, he stressed the importance of considering whether the people who were assigned to search for e-discovery data had the proper training or experience. After all, the responsibility for what's turned over to opposing counsel will ultimately rest with the attorney. “The measure is you,” Coley said.